Patna High Court
Rameshwar Mehta and Ors.versusThe State Of Bihar
- Decided
- Disposal
- PARTLY ALLOWED (DISPOSAL)
- Bench
- PURNENDU SINGH
Holding
The conviction under Section 323 IPC is upheld as the evidence establishes assault beyond reasonable doubt, and the appellants are entitled to release on probation under the Probation of Offenders Act.
Summary
The appellants were convicted under Section 323 of the Indian Penal Code for assaulting the informant and his family during a dispute over a straw‑room. The prosecution relied on the testimony of several injured witnesses and injury reports, while the defence argued that the evidence was vague, inconsistent, and tainted by a long‑standing family property dispute. The High Court examined the credibility of each witness, noting that the hostile witness offered no assistance and that the key witnesses' accounts, though not flawless, were corroborated by other testimony and medical evidence. It concluded that the prosecution had proved the elements of assault beyond reasonable doubt, thereby upholding the conviction, but found no basis to interfere with the trial court’s decision to release the appellants on probation. Consequently, the court affirmed the conviction under Section 323 and ordered the appellants’ release under Sections 3 and 4 of the Probation of Offenders Act, 1958, while partially allowing the appeal.
Issues considered
- Whether the prosecution proved the ingredients of Section 323 IPC beyond reasonable doubt.
- Whether the conviction under Section 323 IPC should be set aside.
- Whether the appellants are eligible for probation under Sections 3 and 4 of the Probation of Offenders Act, 1958.
Legislation cited
- Criminal Procedure Code — s. 144, 145, 313
- Indian Penal Code — s. 300, 304, 307, 323, 342, 376, 379, 511
- Probation of Offenders Act, 1958 — s. 3, 4
Subjects
- assault
- Section 323 IPC
- probation
- property dispute
- evidence evaluation
- conviction upheld
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.776 of 2012
Arising Out of PS. Case No.-13 Year-2004 Thana- GAMAHARIYA District- Madhepura
======================================================
1. Rameshwar Mehta S/O Late Bauni Mehta Resident of Village Chandanpath,
P.S. Gamharia, District Madhepura.
2. Chandra Bhushan Ravi, S/o Rameshwar Mehta Resident of Village
Chandanpath, P.S. Gamharia, District Madhepura.
3. Birendra Mehta @ Birendra, S/o Late Buchan Mehta Resident of Village
Bhelwa, P.S. Gamharia, District Madhepura.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Sanjay Kumar, Amicus Curiae.
For the Respondent/s : Mr. Abhay Kumar, APP.
======================================================
CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
C.A.V. JUDGMENT
Date : 09-07-2026
Heard Mr. Sanjay Kumar, learned Amicus Curiae
and Mr. Abhay Kumar, learned APP for the State.
2. The appellants have preferred the present criminal
appeals against the judgment of conviction and order of
sentence dated 31.07.2012 passed in Sessions Trial No. 244 of
2005, arising out of Gamharia P.S. Case No. 13 of 2004, G.R.
No. 267/2004 by learned Addl. Sessions Judge (Ad hoc)-I,
Madhepura, whereby, the learned trial court has convicted the
appellants under Section 323 of the Indian Penal Code and they
have been released from judicial custody after due admonition
under Section 3 of the Probation of the Offenders Act.
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3. The appellants have assailed the impugned
judgment primarily on the ground that the learned trial court has
failed to appreciate the evidence available on record in its
proper perspective and has erred in recording the conviction of
the appellants.
BRIEF FACTS OF THE CASE
4. The prosecution case, in brief is that on 30.03.2004
at about 8:00 A.M., while the informant was fixing a stake
(khunta) in his straw room (bhusa ghar), the appellants, namely
Rameshwar Mehta, Chandra Bhusan Ravi, and Birendra @
Biren Mehta armed with lathi, danda and iron rod, arrived at the
place and objected to the construction work. On protest by the
informant, the appellants allegedly assaulted him. It was further
alleged that the appellant Birendra Mehta dragged the informant
to the ground and pressed his neck. When the informant's father,
Nageshwar Mehta, intervened, he was also assaulted. The
informant's wife, Kanchan Bala Sinha, came to rescue them,
whereupon she too was assaulted and the appellant Rameshwar
Mehta allegedly snatched her gold ear-ring. The prosecution
further alleged that after the appellants initially left the place,
appellant Birendra Mehta returned and attempted to commit
rape upon Kanchan Bala Sinha by knocking her down and
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removing her clothes. On her alarm, nearby villagers intervened
and saved her. Upon investigation, charge-sheet was submitted
against the accused persons. Charges were framed under
Sections 323 and 342 IPC against all accused; additionally,
accused Birendra Mehta was charged under Sections 376/511
IPC and accused Rameshwar Mehta under Section 379 IPC.
ARGUMENT ON BEHALF OF Amicus Curiae
5. Learned Amicus Curiae submitted that the
prosecution case is the outcome of a long-standing dispute
regarding the Bhusaghar (straw-room) and the right of passage
between the parties, who are admittedly close agnates (Gotias).
It was contended that the prosecution failed to produce any
documentary evidence to establish its claim over the disputed
property, whereas the appellants proved the existence of the
dispute by exhibiting the Khatian and the orders passed in
proceedings under Sections 144 and 145 Cr.P.C., thereby
rendering the genesis of the occurrence doubtful. It was further
submitted that the appellants, all being Government teachers
and persons of respectable standing with no criminal
antecedents, were falsely implicated to ruin their careers.
Learned counsel further submitted that the learned trial court
itself disbelieved substantial parts of the prosecution case by
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acquitting the appellants of the charges under Sections 379, 342
and 376/511 of the Indian Penal Code and that the evidence
regarding the alleged assault is vague and inconsistent, as no
witness specifically attributed any overt act to any particular
accused. The medical evidence is also unreliable since the
examining doctor was not produced, while the prosecution
witnesses are either interested or related witnesses and one
independent witness was declared hostile. It was lastly
submitted that the contradictions regarding the time and manner
of occurrence, coupled with the admitted enmity and pending
civil proceedings, probabilise the defence case that at best there
was a verbal altercation arising out of the property dispute and
that the prosecution has failed to prove the charges beyond
reasonable doubt, making the impugned judgment liable to be
set aside. Another point raised by Mr. Sanjay Kumar, learned
Amicus Curiae, is that the appellants stand convicted only under
Section 323 of the Indian Penal Code. It is submitted that the
occurrence arose out of a dispute amongst members of the same
family residing in the same locality. It is further pointed out that
no adverse material regarding the antecedents or subsequent
conduct of the appellants has been brought on record, nor is
there any allegation that they have been involved in any offence
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involving moral turpitude. In such circumstances, learned
Amicus Curiae submits that the appellants deserve to be
extended the benefit of Sections 3 and 4 of the Probation of
Offenders Act, 1958.
ARGUMENT ON BEHALF OF THE STATE
6. Per Contra, learned APP appearing for the State while
opposing the appeal submitted that the learned District court,
after considering all the evidences on record and exhibits
submitted on behalf of the parties during the course of trial, has
rightly convicted the appellants for said offences. On a specific
query made by this Court, learned counsel for the State
submitted that, having regard to the fact that the informant and
the appellants are closely related and belong to the same
locality, and there being no adverse material regarding their
conduct, the appellants may appropriately be released on
probation upon their executing bonds for maintaining peace and
good conduct for a period of one year before the jurisdictional
trial court, with adequate sureties.
ANALYSIS AND CONCLUSION
7. Heard the parties.
8. I have perused the lower court records and
proceedings and also taken note of the arguments canvassed by
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learned counsel appearing on behalf of the parties.
9. With reference to the aforesaid rival legal
contention urged on behalf of the parties, I have carefully
examined the case to find out whether the impugned judgment
warrants interference by this Court on the charge levelled
against the accused/appellants under Section 323 of the Indian
Penal Code.
10. During the trial, the prosecution has examined
altogether ten witnesses, namely:
i. P.W.1 – Nageshwar Mehta – Father of the informant
ii. and an injured witness.
iii. P.W.2 – Mukesh Bhagat – Alleged eye-witness to the
occurrence.
iv. P.W.3 – Panchlal Mehta – Witness declared hostile by
the prosecution.
v. P.W.4 – Turanti Mehta – Alleged eye-witness to the
occurrence.
vi. P.W.5 – Nasima Khatoon – Alleged eye-witness to the
occurrence.
vii. P.W.6 – Chandra Kishor Bidyarthi – Informant of the
case and injured witness.
viii. P.W.7 – Domi Bhagat – Alleged eye-witness to the
occurrence.
ix. P.W.8 – Kanchan Bala Sinha – Wife of the informant,
injured witness and alleged victim of the offence under
Sections 376/511 IPC.
x. P.W.9 – Anmol Singh – Brother of P.W.8 Kanchan Bala
Sinha and alleged eye-witness.
xi. P.W.10 – Sushil Kumar Yadav – Investigating Officer of
the case.
11. The prosecution has also relied upon following
documents exhibited during the course of trial:
Ext.-1 – Written application/fardbeyan submitted by the
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informant.
• Ext.-2 – Endorsement on the written application.
• Ext.-3 – Injury report of P.W.6 Chandra Kishor Bidyarthi.
• Ext.-3/A – Injury report of P.W.8 Kanchan Bala Sinha.
• Ext.-3/B – Injury report of P.W.1 Nageshwar Mehta.
• Defence Exhibits
1. Ext.-A – Certified copy of order passed under Section 144
Cr.P.C.
2. Ext.-B – Certified copy of Khatiyan.
3. Ext.-C – Carbon copy of notice issued under Section 144
Cr.P.C.
12. From the perusal of records, I proceed to analyse
the statements of the prosecution witnesses whether they have
supported the prosecution case.
P.W.1 – Nageshwar Mehta (Injured Witness) -
P.W.1 Nageshwar Mehta, father of the informant and an injured
witness, deposed that on the date of occurrence at about 8:00
A.M., his son Chandra Kishor was fixing a stake in the straw
room. At that time, all the accused persons came there and
objected to the same. When his son protested, the accused
persons assaulted him with lathi, danda and rod. When he
intervened to save his son, he was also assaulted by the accused
persons. He further stated that when the wife of the informant
came to rescue them, she too was assaulted and accused
Rameshwar Mehta snatched away her right ear-ring. He also
stated that accused Birendra Mehta followed Kanchan Bala,
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dragged her into a room and attempted to commit rape upon her.
In cross-examination, he admitted that there was a land dispute
between the parties and that they had been living separately
since 1962. He further admitted that the facts relating to the
alleged attempt to rape were narrated to him by Kanchan Bala
and were not witnessed by him personally.
P.W.2 – Mukesh Bhagat – He deposed that on the
date and time of occurrence he was proceeding towards the
house of one Luxman Mahto. When he reached near the place of
occurrence, he saw Chandra Kishor repairing the straw room. At
that time, the accused persons arrived and objected to the work.
Thereafter, a quarrel ensued and both sides engaged in a scuffle.
He stated that when Nageshwar Mehta and the wife of the
informant came to intervene, they too were assaulted by the
accused persons. He further stated that villagers assembled there
and separated the parties. However, he did not state anything
regarding the allegation of attempted rape by accused Birendra
Mehta or the alleged snatching of the ear-ring by accused
Rameshwar Mehta.
P.W.3 – Panchlal Mehta (Hostile Witness) -- He was
declared hostile by the prosecution. He stated that in March,
2004, some altercation and scuffle had taken place between
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Rameshwar Mehta and Nageshwar Mehta concerning a dispute
over a pathway. He admitted that his statement had been
recorded by the police. However, he stated that he had not
actually witnessed the occurrence and did not support the
prosecution case regarding assault, attempted rape or theft.
P.W.4 – Turanti Mehta – He deposed that on the
relevant day he was present at his house and upon hearing
alarm, he reached the place of occurrence. He saw that the
accused persons were objecting to the informant fixing a stake
in the straw room. When the informant protested, the accused
persons assaulted him. He further stated that when Nageshwar
Mehta and Kanchan Bala came to save the informant, they were
also assaulted by the accused persons. He supported the
prosecution allegation that accused Rameshwar Mehta had
taken away the ear-ring of Kanchan Bala. However, he did not
depose anything regarding the allegation of attempted rape.
P.W.5 – Nasima Khatoon – She stated that at the
relevant time she was engaged in separating grain from chaff.
She saw Chandra Kishor fixing a stake near the straw room. At
that time, all three accused persons arrived and started
assaulting him. When Kanchan Bala came to rescue her
husband, she was also assaulted. She further stated that after the
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initial occurrence, accused Birendra Mehta returned and started
misbehaving with Kanchan Bala and attempted to outrage her
modesty. She supported the prosecution case regarding the
assault but did not give a detailed account of the alleged
attempted rape.
P.W.6 – Chandra Kishor Bidyarthi (Informant) --
P.W.6 Chandra Kishor Bidyarthi, the informant and injured
witness, stated that on 30.03.2004 at about 8:00 A.M., he was
fixing a stake in the straw room situated near his house. At that
time, the accused persons came there armed with lathi, danda
and rod and questioned him as to why he was fixing the stake.
When he replied that it was his room, the accused persons
started assaulting him with fists, slaps and lathi blows. He
specifically stated that accused Birendra Mehta dragged him
down and pressed his neck. When his father came to save him,
he was also assaulted. He further stated that when his wife
arrived there, accused Rameshwar Mehta snatched away her
right ear-ring. He stated that due to fear, he and his father moved
away from the place. Thereafter, when his wife started weeping,
she informed him that accused Birendra Mehta had knocked her
down and attempted to commit rape upon her. He then
proceeded to the police station and lodged the written report.
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P.W.7 – Domi Bhagat – He deposed that on the date
of occurrence he had gone to fetch milk from the house of one
Harial Yadav. On hearing alarm, he reached the place of
occurrence and found the accused persons assaulting Chandra
Kishor with lathi and danda. He stated that when Mukesh
Bhagat, Nageshwar Mehta and Kanchan Bala attempted to
intervene, they were also assaulted. He further stated that
accused Birendra Mehta had knocked Kanchan Bala down and
caught hold of her. He supported the prosecution case regarding
assault and also partially supported the allegation against
Birendra Mehta relating to Kanchan Bala.
P.W.8 – Kanchan Bala Sinha (Victim and Injured
Witness) – She is the wife of the informant and the alleged
victim of attempted rape. She stated that on the date of
occurrence her husband was fixing a stake in the straw room. At
that time, all the accused persons arrived there and objected to
the work. Accused Birendra Mehta knocked down her husband
and pressed his neck. When she and her father-in-law
intervened, they too were assaulted. She further stated that
accused Rameshwar Mehta snatched away her right ear-ring
worth about Rs. 3,000/-. According to her, after the informant
and his father had left the place, accused Birendra Mehta
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returned, caught hold of her hand, knocked her down, removed
her clothes and attempted to commit rape. On her raising alarm,
several villagers arrived there and saved her. She also stated that
she sustained injuries during the occurrence.
P.W.9 – Anmol Singh – He is the brother of Kanchan
Bala Sinha. He stated that on the date of occurrence he was
present in the informant's house and was taking breakfast. On
hearing alarm, he came outside and saw the informant fixing a
stake in the straw room and the accused persons objecting to it.
He stated that the accused persons assaulted the informant with
lathi and danda and also assaulted Nageshwar Mehta and
Kanchan Bala when they intervened. He further stated that
accused Birendra Mehta pressed the neck of the informant and
accused Rameshwar Mehta snatched the right ear-ring of
Kanchan Bala. He deposed that after some time accused
Birendra Mehta returned, knocked Kanchan Bala down on the
verandah and attempted to commit rape upon her. On hearing
her cries, people gathered there and she was rescued.
P.W.10 – Sushil Kumar Yadav (Investigating
Officer) -- He stated that on receiving the written report, he
made the formal endorsement and instituted the case. He
inspected the place of occurrence and found it situated near the
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sahan of the informant. He stated that there existed a prior
dispute between the parties regarding a pathway. He further
deposed that during investigation, witnesses informed him that
the alleged attempt to rape had taken place in the verandah of
the informant's house. He proved the written report,
endorsement and the injury reports of the injured persons
marked as Exts. 1, 2 and 3 series. During cross-examination, he
admitted that there was an ongoing dispute regarding the
pathway between the parties and described the location of the
houses and straw room involved in the occurrence.
13. On the basis of materials surfaced during the trial,
the appellants/accused were examined under Section 313 of the
Cr.PC by putting incriminating circumstances/evidences
surfaced against them, which they denied and showed their
complete innocence.
Moot question which arises before this Court is
whether conviction under Section 323 is sustainable?
14. It would be appropriate to reproduce the
provisions of Sections 307 and 323 of I.P.C. for the sake of
convenience and better understanding of the facts, which are as
under:-
“307. Attempt to murder.—
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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 mentioned. Attempts by life
convicts.— When any person offending under this section is
under sentence of imprisonment for life, he may, if hurt is
caused, be punished with death.
Illustrations
(a) A shoots at Z with intention to kill him, under such
circumstances that, if death ensued. A would be guilty of
murder. A is liable to punishment under this section.
(b) A, with the intention of causing the death of a child of
tender years, exposes it in a desert place. A has committed
the offence defined by this section, though the death of the
child does not ensue.
(c) A, intending to murder Z, buys a gun and loads it. A has
not yet committed the offence. A fires the gun at Z. He has
committed the offence defined in this section, and if by such
firing he wounds Z, he is liable to the punishment provided
by the latter part of the first paragraph of this section.
(d) A, intending to murder Z by poison, purchases poison
and mixes the same with food which remains in A’s keeping;
A has not yet committed the offence defined in this section.
A places the food on Z’s table or delivers it to Z’s servant to
place it on Z’s table. A has committed the offence defined in
this section.
323. Punishment for voluntarily causing hurt.—
Whoever, except in the case provided for by section 334,
voluntarily causes hurt, shall be punished with
imprisonment of either description for a term which may
extend to one year, or with fine which may extend to one
thousand rupees, or with both.”
15. The Apex Court laid down the litmus test for
determination of nature of offence in Pulicherla Nagaraju v.
State of A.P. reported in (2007) 1 SCC (Cri) 500. In the facts
and circumstances of a particular case, the Court needs to decide
the pivotal question of existence of intention with care and
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caution. The following factors needs to be examined:
"(i) nature of the weapon used;
(ii)whether the weapon was carried by the accused or
was picked up from the spot;
(iii) whether the blow is aimed at a vital part of the body;
(iv) the amount of force employed in causing injury;
(v) whether the act was in the course of sudden quarrel or
sudden fight or free for all fight;
(vi) whether the incident occurs byenmity or whether the
deceased was a stranger;
(viii)whether there was any grave and sudden
provocation, and if so, the cause for such provocation;
(ix) whether it was in the heat of passion;
(x) whether the person inflicting the injury has taken
undue advantage or has acted in a cruel and unusual
manner;
(xi) whether the accused dealt a single blow or several
blows."
16. The similar question came up before the Supreme
Court in the case of Joseph v. State of Kerala, reported in 1995
SCC (Cri) 165, has observed in para 3 which is reproduced
hereinafter:
“3. In this appeal the learned
counsel for the appellant submits that the
intention to cause the injury which was found
sufficient to cause the death in the ordinary
course of the nature was not established. In
support of this submission he relied on the
circumstances namely that the whole incident
took place because of a trivial incident which
resulted in a quarrel and that the weapon
used was only a lathi and in the
circumstances it cannot be said that the
accused intended to cause the death by
inflicting that particular injury which
objectively was proved by the medical
evidence to be sufficient in the ordinary
course of nature to cause death. In other
words he submits that clause 3rdly of Section
300 IPC is not attracted in this case. We find
considerable force in the submission. The
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weapon used is not a deadly weapon as
rightly contended by the learned counsel. The
whole occurrence was a result of a trivial
incident and in those circumstances the
accused dealt two blows on the head with a
lathi, therefore, it cannot be stated that he
intended to cause the injury which is
sufficient (sic). At the most it can be said that
by inflicting such injuries he had knowledge
that he was likely to cause the death. In
which case the offence committed by him
would be culpable homicide not amounting
to murder. We accordingly set aside the
conviction of the appellant under Section 302
IPC and the sentence of imprisonment for life
awarded thereunder. Instead we convict the
appellant under Section 304 Part II IPC and
sentence him to five years' RI.”
17. The judgment of Joseph (supra) was referred
by the Apex Court in the case of Jugatram Vs. State of
Chhattisgarh, reported in (2020) 9 SCC 520.
18. Further to sustain a conviction under Section 307
IPC, the Apex Court in the case of Sivamani v. State, reported
in, 2023 SCC OnLine SC 1581, in paragraph no. 9 has held as
under:
“ 9. In State of Madhya Pradesh v.
Saleem, (2005) 5 SCC 554, the Court held that to
sustain a conviction under Section 307, IPC, it was
not necessary that a bodily injury capable of
resulting in death should have been inflicted. As
such, non-conviction under Section 307, IPC on the
premise only that simple injury was inflicted does
not follow as a matter of course. In the same
judgment, it was pointed out that ‘…The court has
to see whether the act, irrespective of its result, was
done with the intention or knowledge and under
circumstances mentioned in the section.’ The
position that because a fatal injury was not
sustained alone does not dislodge Section 307, IPC
conviction has been reiterated in Jage Ram v. State
of Haryana, (2015) 11 SCC 366 and State of
Madhya Pradesh v. Kanha, (2019) 3 SCC 605. Yet,
in Jage Ram (supra) and Kanha (supra), it was
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observed that while grievous or life-threatening
injury was not necessary to maintain a conviction
under Section 307, IPC, ‘The intention of the
accused can be ascertained from the actual injury,
if any, as well as from surrounding circumstances.
Among other things, the nature of the weapon used
and the severity of the blows inflicted can be
considered to infer intent.”
19. The record reveals that P.W.3 – Panchlal Mehta
was declared hostile during the trial, as he did not support the
prosecution case on the material aspects of the occurrence and
categorically stated that he had not witnessed the incident.
Though he admitted that some altercation had taken place
between the parties on account of a pathway dispute, he failed to
support the prosecution version regarding assault, attempted
rape or theft. In view of his hostile stand and absence of any
incriminating evidence against the accused persons, his
testimony does not advance the prosecution case. Accordingly,
the evidence of P.W.3 is of no substantial assistance in
establishing the charges against the accused persons.
20. The prosecution case substantially rests upon
the testimony of P.W.6 – Chandra Kishor Bidyarthi, the
informant, and P.W.8 – Kanchan Bala Sinha, the alleged victim
of the offence under Sections 376/511 IPC. Though these
witnesses have attributed specific overt acts to the accused
persons, particularly accused Birendra Mehta and Rameshwar
Mehta, their versions are not free from inconsistencies and do
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not receive uniform corroboration from the other prosecution
witnesses. Significantly, P.W.2 – Mukesh Bhagat and P.W.4 –
Turanti Mehta, who were projected as eye-witnesses, did not
support the prosecution case regarding the alleged attempt to
commit rape, while the evidence of P.W.1 on this aspect is
admittedly hearsay in nature. The learned trial court further
noticed that the medical evidence did not fully support the
manner of occurrence alleged by the prosecution and that the
testimony of P.W.9 – Anmol Singh appeared unnatural and
unreliable. It has also come on record that there existed a long-
standing land and pathway dispute between the parties, who are
closely related to each other. In such circumstances, the
possibility of exaggeration and embellishment in the
prosecution story cannot be ruled out. Accordingly, the learned
trial court rightly held that the prosecution failed to establish the
charges under Sections 376/511 IPC, 379 IPC and 342 IPC
beyond reasonable doubt. However, so far as the charge under
Section 323 IPC is concerned, the evidence of the injured
witnesses was found consistent and duly corroborated by the
medical evidence, leading to the conviction of the accused
persons under the said provision.
21. It is well settled that an attempt to commit murder
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must be clearly distinguished from a mere intention to commit
the offence or from acts that amount only to preparation for its
commission. The law recognizes that the existence of a guilty
intention alone is not sufficient to constitute an attempt. There
must be something more than planning or arranging the means
to commit the crime. Therefore, in order to secure a conviction
under Section 307 of the Indian Penal Code, the prosecution
must prove the presence of a definite intention or knowledge to
cause death, accompanied by some overt act that directly moves
towards the execution of that intention. In other words, the
accused must not only possess the intention to commit murder
but must also perform an act that clearly demonstrates the
commencement of the offence.
22. Admittedly, from the prosecution evidence
itself, it transpires that there existed a long-standing land and
pathway dispute between the parties, who are closely related to
each other. This fact has been admitted by P.W.1 – Nageshwar
Mehta, P.W.6 – Chandra Kishor Bidyarthi (informant) and has
also been corroborated by P.W.10 – Sushil Kumar Yadav, the
Investigating Officer. However, the existence of prior enmity by
itself cannot be a ground to discard the prosecution case in its
entirety, particularly when the same may also furnish a motive
Patna High Court CR. APP (SJ) No.776 of 2012 dt.09-07-2026
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for the occurrence. The prosecution case is that the occurrence
took place when the informant was fixing a stake in his straw
room and the accused persons objected to the same, resulting in
an altercation and assault. P.W.6 – Chandra Kishor Bidyarthi has
consistently narrated the occurrence of assault both in the
written report and in his deposition before the learned trial
court. Although P.W.3 – Panchlal Mehta did not support the
prosecution case and was declared hostile, the evidence of the
injured witnesses, namely P.W.1, P.W.6 and P.W.8, regarding the
occurrence of assault finds substantial corroboration from the
testimony of P.Ws.2, 4, 5 and 7, as well as, from the injury
reports marked Exts. 3, 3/A and 3/B. At the same time, the trial
court found that the allegations relating to attempted rape, theft
of ear-ring and wrongful confinement were not consistently
supported by the prosecution witnesses and suffered from
material discrepancies and lack of reliable corroboration.
23. I find that the whole occurrence was a result of
a trivial incident and in those circumstances the accused dealt
blows on the head with a lathi, therefore, it cannot be stated that
he intended to cause the injury which is sufficient. At the most it
can be said that by inflicting such injuries he had knowledge
that he was likely to cause the death. In which case the offence
Patna High Court CR. APP (SJ) No.776 of 2012 dt.09-07-2026
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committed by him would be culpable homicide not amounting
to murder and the facts of the present case are squarely covered
by the judgment passed by the Apex Court in case of Sivamani
(supra) and in view of the aforesaid discussion of factual and
legal aspects, It emerges from the evidence available on record
that the alleged occurrence took place on account of the existing
land dispute and previous litigation between the parties. Merely
because there was prior enmity between the parties, the
testimony of the injured informant cannot be discarded, rather
such enmity may constitute a motive for the occurrence itself.
Furthermore, the allegations and evidence available on record
primarily disclose an occurrence of assault resulting in injuries
to P.W.1 – Nageshwar Mehta, P.W.6 – Chandra Kishor Bidyarthi
and P.W.8 – Kanchan Bala Sinha. The testimony of the injured
witnesses regarding the assault has been consistently supported
by the other prosecution witnesses and finds due corroboration
from the injury reports marked Exts. 3, 3/A and 3/B.
24. At the same time, the evidence adduced by the
prosecution does not satisfactorily establish the ingredients of
the offences punishable under Sections 376/511 IPC, 379 IPC
and 342 IPC. The learned trial Court has assigned cogent
reasons for disbelieving the allegations relating to attempted
Patna High Court CR. APP (SJ) No.776 of 2012 dt.09-07-2026
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rape, theft of ear-ring and wrongful confinement, noticing
material inconsistencies in the testimony of witnesses, absence
of reliable corroboration and the improbabilities appearing in
the prosecution version. In such circumstances, the learned Trial
Court has properly appreciated both the oral and documentary
evidence on record and rightly come to the conclusion that the
prosecution has succeeded in proving the offence punishable
under Section 323 of the Indian Penal Code against all the
accused persons beyond reasonable doubt, while extending the
benefit of doubt in respect of the remaining charges.
Accordingly, this Court finds no illegality, perversity or
misappreciation of evidence in the impugned judgment
warranting interference with the finding of conviction recorded
under Section 323 IPC.
25. In the background of the discussions made
hereinabove and on taking an overall view, the impugned
judgment of conviction and order of sentence dated 31.07.2012
passed in passed in Sessions Trial No. 244 of 2005, arising out
of Gamharia P.S. Case No. 13 of 2004, G.R. No. 267/2004,
whereby, the appellants have been convicted under Section 323
of the Indian Penal Code, does not warrant interference, so far
as, the finding of conviction is concerned.
Patna High Court CR. APP (SJ) No.776 of 2012 dt.09-07-2026
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26. However, question arises whether in the facts
and circumstances of the present case, it would be expedient to
extend the benefit of Section 4 of the Probation of Offenders
Act, 1958. The appellants have been convicted under Section
323 of the Indian Penal Code, which prescribes a maximum
punishment of one year's imprisonment. The occurrence
admittedly arose out of a dispute between closely related
persons residing in the same locality. There is no material on
record to indicate that the appellants have any criminal
antecedents or have subsequently indulged in any criminal
activity involving moral turpitude reported by the learned APP
at the time of hearing of the appeal.
27. Having regard to the nature of the offence, the
relationship between the parties, the absence of any adverse
antecedents, and the overall facts and circumstances discussed
hereinabove, this Court is of the considered opinion that the
learned trial court has erred no mistake in convicting the
appellants under Section 323 of IPC and while maintaining
their conviction under section 323 of IPC, appellants were
released on probation of good conduct under Section 3 of the
Probation of Offenders Act, 1958, upon their executing bonds to
maintain peace and good behaviour for a period of one year. I
Patna High Court CR. APP (SJ) No.776 of 2012 dt.09-07-2026
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find that the appellants have already been released vide
order/judgment dated 31.07.2012 and no adverse report against
the appellants is placed before this Court, they are accordingly
directed to be released.
28. Accordingly, the present appeal is partially
allowed.
29. The Patna High Court, Legal Services
Committee is, hereby, directed to pay a sum of Rs. 10,000/-
(Rupees ten thousand) to Mr. Sanjay Kumar, learned Amicus
Curiae, as consolidated fee, for rendering his valuable
professional service.
30. Office is directed to send back the lower court
records along with a copy of the judgment to the learned District
Court forthwith.
(Purnendu Singh, J)
mantreshwar/-
AFR/NAFR
CAV DATE 25.06.2026
Uploading Date 09.07.2026
Transmission Date 09.07.2026
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