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Patna High Court

Rameshwar Mehta and Ors.versusThe State Of Bihar

Decided
Disposal
PARTLY ALLOWED (DISPOSAL)

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

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
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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
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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
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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.
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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
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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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