Antu Thakur @ Ashok Kumar vs The State Of Bihar
2023 Latest Caselaw 2078 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (DB) No.11 of 2016
      Arising Out of PS. Case No.-18 Year-2001 Thana- MORO District- Darbhanga
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Antu Thakur @ Ashok Kumar S/o Shankar Thakur, resident of village- Bishanpur, P.S.- Katra, District- Muzaffarpur

... ... Appellant/s Versus The State Of Bihar

... ... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr. Mahendra Thakur, Advocate For the Respondent/s : Mr. Abhimanyu Sharma, APP For the Informant : Mr. Rabindra Kumar, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and HONOURABLE MR. JUSTICE HARISH KUMAR ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)

Date : 03-05-2023 We have heard Mr. Mahendra Thakur, learned

Advocate for the sole appellant and Mr. Abhimanyu

Sharma for the State. Mr. Rabindra Kumar, learned

Advocate for the informant has also assisted this Court.

The appellant has been charged under Section

302/34 of the Indian Penal Code for having assaulted the

deceased by means of a dagger leading to his death.

The FIR was registered on 14.06.2001 by the

father of the deceased, who has been examined as P.W. 5

at the trial, for an occurrence which took place in the Patna High Court CR. APP (DB) No.11 of 2016 dt.03-05-2023

evening of 13.06.2001. P.W. 5 has stated that while he

along with his son (deceased) was sitting at his darwaja, a

buffalo of one Dahu Chaudhary came in the field belonging

to the informant and destroyed the crops. P.W. 5 asked his

son (deceased) to tend away the buffalo which he did. This

infuriated some of the persons of the neighbourhood

including the appellant, who entered into verbal duel with

the deceased. In the meantime, on the exhortation of one

Sachidanand Chaudhary, Munshijee Chaudhary both of

whom have not been put on trial as final report false was

submitted in their favour and Shankar Thakur caught hold

of the deceased and the appellant/Antu Thakur coup de

graced the deceased by means of a dagger which he was

carrying on his person. Shankar Thakur, who is the father

of the appellant was put on trial along with his son but he

has since been acquitted.

The trial court, after having examined eleven

witnesses on behalf of the prosecution including the two

Investigating Officers and the Doctor, convicted the Patna High Court CR. APP (DB) No.11 of 2016 dt.03-05-2023

appellant under Section 302 of the Indian Penal Code and

sentenced him to undergo R.I. for life, to pay a fine of Rs.

25000/- and in default of payment of fine, to further suffer

R.I. for five years.

Shankar Thakur another co-accused as noted

above has been acquitted of all charges.

One of the persons who has been named by P.W.

5 in the fardbeyan, of having come to his house

immediately after the occurrence, has been cited as P.W. 1

(Shatrughan Chaudhary), who has not supported the

prosecution version and has been declared hostile. He has

said before the trial court that he came to learn that the

deceased died but in what manner and where was not

known to him. Similar statements have been made by

P.Ws. 2, 3 and 4, all of whom also have been declared

hostile by the prosecution.

The informant/P.W. 5 has but supported the

prosecution case and has categorically stated that when

the deceased herded away the buffalo which had trampled Patna High Court CR. APP (DB) No.11 of 2016 dt.03-05-2023

the Janera crops in his field, the appellant, his

father/Shankar Thakur, Sachidanand Chaudhary and

Munshijee Chaudhary started abusing his son. However,

his son came back to his house but was followed by the

aforenoted four persons. Sachidanand Chaudhary exhorted

the others to kill the deceased, on which the appellant

gave a dagger blow leading to his death.

He has further stated that at the time of the

occurrence Mangal Jha, Gauri Shankar Chaudhary,

Gobardhan Chaudhary and Parwati Devi were present. Out

of these, only Parwati Devi has been examined as P.W. 8,

who is non-else but the mother of the deceased. The rest

others have not been examined during the trial. With the

help of the villagers, the injured son of the informant was

taken to DMCH where the doctor declared him dead. In the

morning of 14.06.2001, the Officer-in-Charge of Beta

O.P., within whose jurisdiction DMCH is situated came and

recorded his fardbeyan which was signed by Biltu

Chaudhary (not examined), Shatrughan Chaudhary P.W. 1 Patna High Court CR. APP (DB) No.11 of 2016 dt.03-05-2023

who was declared hostile and Rambilash Chaudhary. The

Officer-in-Charge had made the inquest report in his

presence.

In his cross-examination, P.W. 5 has admitted

that Dahu Chaudhary whose buffalo had entered in his field

is his uncle and who is the maternal grand-father of the

appellant. The land in question had been purchased by his

father and in the entire portion of such plot, Janera crops

had been sown which was standing in the field. He had not

seen anyone of the accused persons overtly armed with

any lethal weapon. He could identify that appellant was

carrying a weapon (a dagger) only when he used it against

his son. There was no other fight in his presence. He did

not even run away when the accused persons came

menacingly towards his son. The deceased also was seated

on the same cot as that of P.W. 5. Even though P.W. 5

asserts that there is a local hospital, he chose to take his

injured son to DMCH on a jeep and he was accompanied

by Shatrughan Chaudhary (P.W. 1) and two others. No Patna High Court CR. APP (DB) No.11 of 2016 dt.03-05-2023

sooner had the son been reached to the hospital, he was

declared dead.

Another son of the P.W. 5 viz. Komalkant

Chaudhary (P.W. 6) has supported the prosecution version

but with a slight twist in the facts of the case. According to

him, P.W. 5, his father, requested Dahu Chaudhary, the

maternal grand-father of the appellant, to take away the

buffalo from his field. Immediately thereafter, the

deceased used a stick to ward-off the buffalo from the

field. This led to an occurrence in which Sachidanand

Chaudhary exhorted for killing the deceased. It was then

that Munshijee Chaudhary and Shankar Thakur caught

hold of the deceased and the appellant killed him by hitting

him with a dagger in his chest. He admits of having seen

the buffalo in his field even before the occurrence took

place.

The skirmish before the attack by a dagger, which

had taken place between the deceased and the accused

persons ended and the deceased came back to his house. Patna High Court CR. APP (DB) No.11 of 2016 dt.03-05-2023

P.W. 6 asserts that he was not chased by the accused

persons. In the next breath, he says that the deceased was

caught in the field only and was assaulted. By the time

P.W. 6 and others could come to the rescue of the

deceased, the assault had already been perpetrated.

He has further admitted the fact that there was

no attempt on the part of the appellant to give another

blow to the deceased. Like P.W. 5, P.W. 6 also had not

seen anybody overtly armed with any weapon.

Immediately after the occurrence, the deceased was taken

to the DMCH, where he was declared dead. However, he

could not tell the trial court as to when the deceased had

died i.e. whether he died on way to hospital or on reaching

the hospital was not known to him. His attention was

drawn to the statement made by him before the police that

the occurrence, in fact, had stopped after some verbal duel

between the parties had taken place but he denied of

having said so before the police.

Patna High Court CR. APP (DB) No.11 of 2016 dt.03-05-2023

The other ocular testimony comes through the

mouth of the mother of the deceased, who has been

examined as P.W. 8. After the FIR, P.W. 8 has asserted

that the police came for further investigation only after two

days. On the next day of the occurrence, the dead body

was cremated. She remained partially unconscious for

about 3 - 4 days as a result of shock because of the death

of her son. Her attention was drawn to her previous

statement before the police where she had not stated that

the deceased had been caught by Shankar Thakur and

Munshijee Chaudhary when he was given the dagger blow

by the appellant but she denied such suggestions.

We have examined the post-mortem report as

also the deposition of the Doctor (P.W. 7). He had

conducted the autopsy on the deceased on 14.06.2001

and had found a stab wound which was very deep. The

sternum was found to have been hit right till 3"-4" to the

mid-line. The 7th right costal catiledge was found to have

been cut and the pointed portion of the weapon also Patna High Court CR. APP (DB) No.11 of 2016 dt.03-05-2023

appeared to have entered the right ventricle of the heart

after cutting through the pericardium. The doctor had

found blood clots on the under surface of the sternum and

the upper surface of the pericardium. Sufficient measure of

blood clots were also found present in the pericardial sac.

Rest of the innards were found to be intact.

The death was opined to have been caused as a

result of shock due to cardiac arrest which in turn was

accelerated by the injuries suffered by the deceased.

We further find from the records that the ASI of

Beta O.P. who had recorded the FIR has not been

examined but Balram Singh who had taken over the

investigation in his capacity as Officer-in-Charge of Moro

Police Station has been examined as P.W. 9. The

investigation was further concluded by Kameshwar Singh,

who too has been examined as P.W. 10. He has stated

before the trial court that Shatrughan Chaudhary (P.W. 1)

had given his statement that when he came back to his

home at 06:00 P.M. on 13.06.2001, he saw that the Patna High Court CR. APP (DB) No.11 of 2016 dt.03-05-2023

deceased was fighting with Shankar Thakur, the appellant

Dahu Chaudhary, Sachidanand Chaudhary and Munshijee

Chaudhary. He also told the I.O. that on the asking of

Sachidanand Chaudhary, the deceased was killed by the

appellant.

P.W. 1, as we have noted above, has denied to

have made any such statement before the police and has

been declared hostile. Similar statements were made by

some of the witnesses who have not been examined at the

trial.

What is important to note is that he had seized

the blood stained earth from near the occurrence but did

not send the same for any forensic examination. He had

recorded the fact in the case diary that the blood stained

earth was seized by him. There was no other seizure by

P.W. 9, not even the weapon of assault. He has denied

that P.W. 8 had stated before her that Shankar Thakur

and Munshijee Chaudhary had caught her son when the Patna High Court CR. APP (DB) No.11 of 2016 dt.03-05-2023

appellant killed him. P.W. 10 had filed the charge-sheet

against the accused persons including the appellant.

Mr. Thakur, learned Advocate for the appellant

has argued that the prosecution has not been able to prove

the case beyond all reasonable doubts.

He submits that but for the deposition of the

father, mother and brother of the deceased, no

independent person, not even the charge-sheeted witness

and a witness to the FIR has supported the prosecution

case. Even the statements made by the aforenoted three

persons (P.Ws. 5, 6 and 8) are at great variance with each

other.

In support of his contention, Mr. Thakur has

urged that even if it is accepted for the time being that the

fatal blow was given by the appellant, there was no

premeditation or planning for surrounding the deceased

and killing him. There was no repetition of the blow and

therefore, at best, the appellant could have been convicted

under Section 304(1) but not under Section 302 of the Patna High Court CR. APP (DB) No.11 of 2016 dt.03-05-2023

Indian Penal Code. As a prop to the aforenoted argument,

Mr. Thakur suggests that the injury became fatal only

because the deceased had taken a pratfall which made the

injury grievous as the weapon got pierced till the

pericardium. There could have been no earthly reason, Mr.

Thakur argues, for killing the deceased for such a trifle.

He has further submitted that from the

surrounding circumstances, it appears that there is some

dispute with respect to the land in the respective

possession of the parties or else the P.W. 5 would not

have talked about the ownership of the land as having

been purchased by virtue of a sale-deed sometimes in the

past. He says so, keeping the background of the appellant

and his father being settllees of the same village.

Mr. Thakur has further pointed out that it appears

to be rather strange that the P.W. 5 did not intercede

when his son was being attacked by the appellant and that

also when except for the appellant, nobody was armed and

the occurrence had taken place in his presence in front of Patna High Court CR. APP (DB) No.11 of 2016 dt.03-05-2023

his house. It is even more surprising that P.W. 5 was left

unscathed. He was not even given a push.

From the evidence on record, he further infers

that the mother of the deceased (P.W. 8) came out of her

house only on hearing hulla and therefore she could not

have, in all probability, witnessed the occurrence. She has

thus, it has been argued, repeated only such fact which

was made known to her by others.

What is even more striking, Mr. Thakur argues,

that instead of making attempts at administering first-aid

to the deceased for the purposes of stopping the bleeding

and preventing any neurogenic shock, which could have

been done by taking the injured to the nearest hospital,

the deceased was taken on a jeep to the headquarters at

Darbhanga to be treated at DMCH.

There is no MLC report on record indicating the

declaration of death by the hospital authorities.

On these grounds, the appellant doubts the

correctness of the prosecution version and prays that such Patna High Court CR. APP (DB) No.11 of 2016 dt.03-05-2023

inconsistencies in the prosecution version must enure in his

favour and he be acquitted of the charges of murder.

As opposed to the aforesaid contention, Mr.

Abhimanyu Sharma, learned APP submits that the

evidence is in the nature of an open and shut case as the

father, mother and brother of the deceased have clearly

stated before the trial court that it was the appellant who

gave the fatal blow to the deceased, even though it was

for a petty dispute.

He further submits that the nature of injury is

such which would bring the case within the four corners of

the provisions contained in Section 300 (thirdly) of the

Indian Penal Code. The act of assault may not have been

intended to cause death but the appellant had the

knowledge that such attack would cause such bodily injury

which is capable of causing death in ordinary course of

nature.

He thus submits that minor variation in the

deposition of the witnesses would not entitle the appellant Patna High Court CR. APP (DB) No.11 of 2016 dt.03-05-2023

to argue for acquittal. Doubts attempted to be created by

the appellant are only fanciful and vague for which the law

does not guard against.

He reminds the Court that if the occurrence is in

the least probable, then the prosecution passes the test of

"beyond reasonable doubts".

We have examined the case from all angles and

we find that even though for a very small cause, an

occurrence took place but the nature of attack attributed to

the appellant clearly reveals that he committed an act

about which he would have known that it would cause

death in all probability and therefore there is no way in

which the appellant can claim to have committed homicide

not amounting to murder.

True it is that P.W. 1 to 4 have not supported the

prosecution version, leaving only the interested and related

witnesses in the field to depose against him but that does

not take away the shine from the prosecution case

altogether.

Patna High Court CR. APP (DB) No.11 of 2016 dt.03-05-2023

If not P.W. 8, P.Ws. 5 and 6 are, for sure, eye

witnesses to the occurrence. There is no evidence of any

long-standing enmity between the parties and even if it is

assumed that there could have been some dispute with

respect to the ownership of the land where the standing

crops were alleged to have been trampled by a buffalo

which had entered the field, that would not be reason and

motive strong enough to falsely implicate the appellant.

We do know the reason why Sachidanand

Chaudhary and Munshijee Chaudhary were not sent up for

trial or were not summoned under Section 319 of the Code

of Criminal Procedure after the deposition of P.Ws. 5, 6

and 8 was recorded but that by itself would not lessen the

guilt of the appellant, who is said to have coup de graced

the deceased.

The post-mortem report and the evidence of the

doctor clearly establishes that the death was homicidal

which amounted to murder as it was the cause of the

injury inflicted by the appellant.

Patna High Court CR. APP (DB) No.11 of 2016 dt.03-05-2023

We are not persuaded to convert the case into

one under Section 304(1) of the Indian Penal Code only

for the reason that there were few abrasions on the body

of the deceased on such parts which can give an

impression that the injuries were rendered more grievous

only because of the struggle or the fall of the deceased

prior to his death.

Thus, finding no fault with the findings of the trial

court, we are constraint to dismiss this appeal.

The appeal stands dismissed.

(Ashutosh Kumar, J)

( Harish Kumar, J)

krishna/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          09.05.2023
Transmission Date       09.05.2023