Patna High Court
Nandu Mahto vs The State Of Bihar on 25 February, 2025
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1206 of 2024
Arising Out of PS. Case No.-189 Year-2009 Thana- RAXAUL District- East Champaran
======================================================
Nandu Mahto, S/o- Late Jidha Mahto @ Yodha Mahto, Resident of Village-
Haraiya, P.S- Raxaul, Dist-East Champaran
... ... Appellant
Versus
1. The State of Bihar.
2. Nawal Kishore Thakur, S/o- Late Ganesh Thakur, R/o Vill-Haraiya, P.S-
Raxaul, Dist-East Champaran.
3. Brij Kishore Thakur S/o- Late Ganesh Thakur, R/o Vill-Haraiya, P.S-Raxaul,
Dist-East Champaran.
4. Awadh Kishore Thakur S/o- Late Ganesh Thakur, R/o Vill-Haraiya, P.S-
Raxaul, Dist-East Champaran.
5. Raj Kishore Thakur S/o- Late Ganesh Thakur, R/o Vill-Haraiya, P.S-Raxaul,
Dist-East Champaran.
6. Shyam Kishore Thakur S/o- Late Ganesh Thakur, R/o Vill-Haraiya, P.S-
Raxaul, Dist-East Champaran.
... ... Respondents
======================================================
Appearance :
For the Appellant : Mr. Rohit Kumar, Advocate
Mr. Binay Kumar, Advocate
Mr. Aashi Vats, Advocate
For the State : Ms. Shashi Bala Verma, APP
For the Respondents : Mr. Ritesh Kumar, Advocate
Mr. Shyam Sunder Kumar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE RAMESH CHAND MALVIYA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 25-02-2025
Heard Mr. Rohit Kumar, learned counsel for the
appellant, Ms. Shashi Bala Verma, learned Additional Public
Prosecutor for the State and Mr. Ritesh Kumar, learned counsel for
Respondent Nos. 2 to 6.
Patna High Court CR. APP (DB) No.1206 of 2024 dt.25-02-2025
2/16
2. By filing this appeal, the informant-appellant has
challenged the judgment dated 31.07.2024 (hereinafter referred to
as the 'impugned judgment') passed by learned Additional
Sessions Judge-10th, East Champaran at Motihari (hereinafter
referred to as the 'learned trial court/trial court') in Sessions Trial
No. 432 of 2011, CIS No. 8022 of 2015 arising out of Raxaul P.S.
Case No. 189 of 2009 to the extent that the impugned judgment
has acquitted Respondent Nos. 2 to 6 of the charges punishable
under Sections 324, 325 and 307 of the Indian Penal Code (in
short 'IPC').
Prosecution Case
3. The prosecution case is based on the fardbeyan of
Nandu Mahto (PW-7) recorded by Z.N. Khan, S.I. of Raxaul
Police Station at Primary Health Centre on 20.11.2019 at 11:15
hours. In his fardbeyan, he has stated that in the morning of
20.11.2009
when he was present in his house, all the accused
persons, namely, (1) Nawal Kishore Thakur, (2) Brij Kishore
Thakur, (3) Awadh Kishore Thakur, (4) Raj Kishore Thakur & (5)
Shyam Kishore Thakur tried to uproot the Naad (feeding utensil
for cattle) and also untied the buffalo from the khutta and
attempted to take away the buffalo. All the five accused persons
are neighbours of the informant. On seeing their act, the informant
Patna High Court CR. APP (DB) No.1206 of 2024 dt.25-02-2025
came running and tried to prevent them from doing the same then
Nawal Kishore Thakur armed with lathi instigated his brothers to
kill Nandu Mahto (the informant) and said that as long as Nandu
Mahto is alive, he would never allow them to have possession over
the land. Thereafter, all five persons went to their home and came
back armed with farsa, sword and lathi. As soon as they returned,
Raj Kishore Thakur armed with farsa with an intention to kill gave
farsa blow to Nandu Mahto. Nandu Mahto somehow tried to save
himself still got head injury and fell on the ground. When he fell
down, Nawal Kishore Thakur and Brij Kishore Thakur started
beating Nandu Mahto with lathi. Again Raj Kishore Thakur gave
farsa blow to Nandu Mahto but saved himself. When the informant
Nandu Mahto started shouting, his brother Bindeshwary Mahto,
wife Gyatri Devi, daughter Kavita Kumari came running from his
house to protect him, then Nawal Kishore Thakur assaulted his
wife with lathi. His wife attempted to obstruct the lathi blow with
her left hand and in the process, she suffered injury on her hand.
His brother Bindeshwari Mahto was assaulted by sword blow of
Shyam Kishore Mahto and his daughter was slammed down to the
ground by Nawal Kishore Mahto. When one co-villager
Parmanand Mahto came to save them, he was also beaten up as a
result of which his ear started bleeding. Other co-villagers, namely,
Patna High Court CR. APP (DB) No.1206 of 2024 dt.25-02-2025
Dinesh Mahto, Lakhraj Mahto, Gaurishankar Mahto started to
assemble there. On seeing people coming all the five accused fled
away from the place of occurrence to their house. While running
away, Shyam Kishore Thakur snatched the gold chain of the
informant's wife. On reaching home, the accused persons started
pelting stones and bricks on the informant and his family. The
reason of dispute is the seven dhurs of land lying in front of the
house of the informant which the accused persons wanted to take
possession of. Thereafter, the informant and his family members
were taken to the Primary Health Centre for treatment.
4. On the basis of the fardbeyan of the informant,
Raxaul P.S. Case No. 189 of 2009 dated 20.11.2009 was registered
for the offences punishable under Sections 341, 323, 324, 307,
379, 337, 504/34 IPC. Upon investigation, a chargesheet bearing
no. 76/10 dated 14.04.2010 was submitted against the five above
named accused persons for the offences under Sections 341, 323,
324, 325, 307, 504/34 IPC. On the basis of this chargesheet,
learned S.D.J.M., Raxaul took cognizance vide order dated
25.09.2009 of the offences under Sections 341, 323, 324, 325, 307
and 504/34 IPC. On finding that the case is triable by the Court of
Sessions, the records were committed to the court of Sessions vide
order dated 11.07.2011. Thereafter Sessions Trial No. 432 of 2011
Patna High Court CR. APP (DB) No.1206 of 2024 dt.25-02-2025
was registered. Charges were read over and explained to the
accused-respondents in Hindi which they denied and claimed to be
tried. Accordingly, learned trial court framed charges against
Shyam Kishore Thakur under Sections 307, 325 and 341 IPC,
against Raj Kishore Thakur under Sections 307, 341 and 324 IPC,
against Nawal Kishore Thakur, Awadh Kishore Thakur and Brij
Kishore Thakur under Sections 307, 323 and 341 IPC vide order
dated 26.08.2011.
5. In course of trial, the prosecution examined altogether
seven witnesses and no documentary evidences were adduced in
course of trial. The list of the prosecution witnesses is mentioned
hereunder in tabular form:-
List of Prosecution Witnesses
PW-1 Gauri Shankar Mahto
PW-2 Lakhram Mahto
PW-3 Kavita Kumari
PW-4 Umesh Mahto
PW-5 Gayatri Devi
PW-6 Bindeshwari Mahto
PW-7 Nandu Mahto
Findings of the Learned Trial Court
6. Learned trial court after analysing the oral evidences
of the informant and other witnesses found that both the parties are
not patidars and there is a dispute with regard to the land. Learned
Patna High Court CR. APP (DB) No.1206 of 2024 dt.25-02-2025
trial court found that PW-3 is the daughter of the informant and
PW-5 is the wife of the informant. Both the witnesses are
interested witnesses.
7. Learned trial court found that in the present case, the
Doctor was not examined as also there is no medical report on the
record, hence, learned trial court opined that though there are oral
evidences of occurrence of injuries but there is inherent absence of
the evidence that the injury had really been caused. Learned trial
court in absence of medical evidence acquitted all the five
accused-respondents of the charge under Section 307 IPC,
acquitted Raj Kishore Thakur of the charge under Section 324 IPC
and acquitted Shyam Kishore Thakur of the charge under Section
325 IPC.
8. Learned trial court further found that the bone of
contention between the parties was a definite piece of land which
the informant claims to have purchased, however, the accused
persons claim that the sale had been made by Heeralal who is a
rightless person, hence, both the parties have made an attempt to
restrain the other from entering into the said disputed land. The
presence of 'naad/khuta' at the place of occurrence provided the
accused with an opportunity to commit the offence, hence, the
chain of circumstances that point only at the accused is complete.
Patna High Court CR. APP (DB) No.1206 of 2024 dt.25-02-2025
So, the learned trial court held the accused Nawal Kishore Thakur,
Brij Kishore Thakur, and Awadh Kishore Thakur guilty under
Sections 323 and 341 IPC. Further, learned trial court held the
accused Raj Kishore Thakur and Shyam Kishore Thakur guilty
under Section 341 IPC. But learned trial court ordered the convicts
to be released giving them benefit of Section 3 of the Probation of
Offenders Act.
Submissions on behalf of the Appellant
9. Learned counsel for the appellant submits that from
the reasoning and rationale provided in the impugned judgment, it
would appear that the learned trial court acquitted Respondent
Nos. 2 to 6 for the reason stated in paragraph '19' of the impugned
judgment. It is submitted that the trial court observed that the
Doctor has not been examined in this case and the medical report
is also not on the record, so, though there are oral evidences of
occurrence of injuries but there is inherent absence of the evidence
that the injury had really been caused by such instrument, which is
spoken of by Sections 324 and 325 IPC. In the absence of medical
evidence, the learned trial court has held that Respondent Nos. 2 to
6 are held not guilty under Sections 307, 324 and 325 IPC.
10. It is submitted that in the present case, the
Investigating Officer (in short 'I.O.') has also not been examined.
Patna High Court CR. APP (DB) No.1206 of 2024 dt.25-02-2025
11. The grievance of the appellant is that despite there
being no service report of summons upon the I.O. and the Doctor,
the learned trial court did not exhaust the procedures established
by law and no process such as bailable warrant or non-bailable
warrant were issued against the official witnesses.
12. It is submitted that on perusal of the order dated
22.06.2023, it would appear that on the said date, the Public
Prosecutor presented Xerox copy of the notices which were sent to
the official witnesses. It was not a proof of service of notice and
the learned trial court did not satisfy itself as to whether the notice
has been duly served upon the official witnesses.
13. Learned counsel further submits that from the order
dated 22.06.2023, it would further appear that the learned trial
court has recorded that for production of the witnesses, all the
processes have been issued but they have not appeared. The
submission is that this is not a fact appearing from the record, the
learned trial court had not exhausted all the processes and the
entire order-sheets of the learned trial court would not show that at
any stage either the satisfaction with regard to service of summons
has been recorded or steps have been taken by issuing bailable
warrant or non-bailable warrant to procure the appearance of the
official witnesses.
Patna High Court CR. APP (DB) No.1206 of 2024 dt.25-02-2025
14. Learned counsel has relied upon a judgment of this
Court in the case of Brajesh Patel and Others Vs. The State of
Bihar reported in 2008 (1) PLJR 492 to submit that in the said
case, the Hon'ble Division Bench of this Court having found that
the learned trial court did not take care to ensure that non-bailable
warrants etc. should have been issued and executed against the
I.O. as well as the Doctor held that the learned trial court had
committed irregularity, illegality and impropriety. In the present
case, it is submitted that because the learned trial court did not
ensure that non-bailable warrants etc. should have been issued and
executed against the I.O. as well as the Doctor, all the possible
evidence of the prosecution could not come on the record and the
Respondent Nos. 2 to 6 could easily get acquitted of the charges
under Sections 324, 325 and 307 IPC.
Submissions on behalf of the Respondents
15. Learned Additional Public Prosecutor for the State as
well as Mr. Ritesh Kumar, learned counsel for the Respondent
Nos. 2 to 6 have jointly opposed the appeal. It is submitted that in
the present case, the occurrence took place in the year 2009. There
is a case and counter-case between the parties and in both the
cases, the learned trial court has held the accused persons of the
respective cases guilty under Sections 323, 341 and 504/34 IPC
Patna High Court CR. APP (DB) No.1206 of 2024 dt.25-02-2025
and in absence of cogent medical evidence, the three accused
persons Nandu Mahto, Bindeshwari Mahto and Narendra Mahto of
the counter-case have got acquittal under Sections 324, 325 and
307 IPC. It is submitted that Nandu Mahto who is Accused No. 1
in the counter-case i.e. Raxaul P.S. Case No. 190 of 2009 is the
appellant before this Court.
16. Learned counsel informs this Court that for the
present, the Respondent Nos. 2 to 6 have not preferred any appeal
against the judgment in Sessions Trial No. 433 of 2011 arising out
of Raxaul P.S. Case No. 190 of 2009 but the appeal is in process of
filing.
17. Learned counsel further submits that the trial of the
case remained pending for about 15 years in the learned court
below and this itself is a punishment for the Respondent Nos. 2 to
6 who were made to contest the case in the trial court for 15 years.
In such circumstances, it is submitted that this Court may not
interfere with the impugned judgment to the extent the Respondent
Nos. 2 to 6 have been acquitted. In his submissions, the Public
Prosecutor was given more than sufficient opportunities to produce
the witnesses and only at his instance when he failed to produce
the official witnesses, the trial court closed the evidence of the
prosecution. It is not a case decided in haste, hence what has been
Patna High Court CR. APP (DB) No.1206 of 2024 dt.25-02-2025
observed by the Hon'ble Division Bench of this Court in case of
Brajesh Patel (supra) would not help the appellant.
Consideration
18. We have heard the rival submissions at the Bar. It is
an admitted position emerging from the records that the I.O. and
the Doctor who are the two official witnesses in this case did not
appear to depose in course of trial. Learned Public Prosecutor got
issued summons to the official witnesses through the court but on
record, there is nothing to show that the summons were duly
served upon the official witnesses. All that is stated and recorded
in the order dated 22.06.2023 of the learned trial court is that the
Public Prosecutor filed Xerox copy of the notices sent to the
official witnesses. There is no whisper in the order of the learned
trial court that the notices have been duly served upon the official
witnesses, therefore, this Court finds that the learned trial court has
not satisfied itself with regard to service of notices upon the
official witnesses and proceeded to record that sufficient time has
been given to the prosecution to produce the witnesses but they
have failed to do so.
19. In our considered opinion, it was incumbent upon
the learned trial court to record its satisfactions based on the
materials on the record as to whether the notices were duly served
Patna High Court CR. APP (DB) No.1206 of 2024 dt.25-02-2025
upon the official witnesses. If, despite the service of notices on the
official witnesses, they chose not to appear in the trial court, it was
open to the trial court to proceed ahead by issuing processes such
as bailable warrant, non-bailable warrant etc. and the trial court
should have ensured execution of the warrants. Instead of issuing
processes against the official witnesses, the learned trial court
committed an error of record in its order dated 22.06.2023 wherein
the court recorded that all processes have been issued against the
witnesses.
20. In paragraph '19' of its judgment, the learned trial
court has recorded as under:-
"19. In the present case, Doctor was not examined.
Medical report is also not on the record. So, though
there are oral evidences of occurrence of injuries but
there is inherent absence of the evidence that the injury
had really been caused by such instrument, which is
spoken of by section 324 & 325 of I.P.C. So, in absence
of Medical evidence, the accused persons, Nawal
Kishore Thakur, Brij Kishore Thakur, Awadh Kishore
Thakur, Raj Kishore Thakur & Shyam Kishore Thakur
are held not guilty u/ss- 307 of the I.P.C. Raj Kishore
thakur is held not guilty u/ss 324 of I.P.C. & Shyam
Kishore Thakur is held not guilty u/ss 325 of I.P.C."
21. The aforesaid views expressed by the learned trial
court is to be considered keeping in view the order dated
Patna High Court CR. APP (DB) No.1206 of 2024 dt.25-02-2025
22.06.2023 in Sessions Trial No. 432 of 2011. We reproduce the
order dated 22.06.2023 hereunder:-
"22/06/2023 lHkh 5 vHkh;qDrksa dh gktjh gSA iqdkj
ij cpko i{k ds fo}ku vf/koDrk ,oa fo}ku vij yksd
vHkh;kstd mifLFkr gq,A cpko i{k ds fo}ku vf/koDrk dk
dguk gS fd vfHk;kstu dks lk{; izLrqr djus gsrq i;kZIr le;
fn;k x;k ysfdu vHkh;kstu lk{; izLrqr ugha fd;s tcfd
vHkh;kstu dh vksj ls vkWQhlh;y lk{kh dks Hksts uksVhl dk
Xerox Copy nk[khy djrs gq, dgk x;k fd lk{kh dks
mifLFkfr gsrq uksVhl Hksts x;s ysfdu lk{; gsrq mifLFkr ugha
gq,] vr% tks mfpr dne gks mBk;k tk,A
lquk okn dk voyksdu fd;k voyksdu ls fofnr gksrk gS
fd vHkh;kstu dks lk{; izLrqr djus gsrq i;kZIr le; fn;k
x;k ysfdu lk{kh mifLFkr ugha gq,A vHkh;kstu dh vksj ls
Hksts x, uksVhl dk Xerox Copy nk[khy fd;k x;k pqafd
lk{kh dks izLrqr djus gsrq lkjs izkslsl tkjh fd;s x;s ysfdu
mifLFkr ugha gq, vr% U;k;fgr esa vHkh;kstu lk{; can fd;k
tkrk gSA lHkh vHkh;qDr viuk c;ku ntZ djsAa "
22. As discussed above, the order dated 22.06.2023 do
not contain any satisfaction of the learned trial court with regard to
service of notices upon the official witnesses and at the same time,
it records an incorrect fact that all processes have been issued for
production of the witnesses.
23. In the case of Brajesh Patel (supra), while
considering a similar fact situation where the I.O. and the Medical
Officer had not appeared to support the prosecution case and as a
result thereof, the Hon'ble Division Bench of this Court found that
there was no legal evidence to sustain the conviction of the three
Patna High Court CR. APP (DB) No.1206 of 2024 dt.25-02-2025
appellants in the said case, the Hon'ble Division Bench while
setting aside the judgment of conviction and the order awarding
sentences remitted the matter back to the learned trial court for
proceeding further with the trial by issuing bailable as well as non-
bailable warrants against the I.O. as well as the Doctor. What has
been held in paragraph '6' of the judgment in case of Brajesh
Patel (supra) is being reproduced hereunder for a ready reference:-
"6. We appreciate the anxiety of the trial
court for expeditious disposal of the criminal case
of serious nature but certain aspects of the matter
were not kept in mind otherwise the learned trial
court would have taken greater care to ensure that
non-bailable warrants etc. should have been issued
and executed against the IO as well as the Doctor
in a serious case of present nature. In not keeping
such important aspect of the case in mind, the
learned trial court, in our view, committed
irregularity, illegality and impropriety. All the
possible evidence of the prosecution could not
come on record on account of such hasty action of
the trial court in closing the case without taking
effective steps to secure presence of the IO and the
Doctor for deposition as a witness. On that account
the trial itself got vitiated resulting into the
impugned judgment of conviction without any
legal evidence worth the name."
24. Having regard to the entire facts and circumstances
and the materials which have been placed before this Court, we
have no iota of doubt that the learned trial court was required to
Patna High Court CR. APP (DB) No.1206 of 2024 dt.25-02-2025
take appropriate steps in accordance with law to procure the
appearance of the I.O. as well as the Doctor. It is crystal clear from
the observations of the learned trial court in paragraph '19' of the
impugned judgment that due to non-appearance of the Doctor, the
medical evidence could not come on the record and that has
caused serious prejudice to the prosecution.
25. We, therefore, set aside the impugned judgment to
the extent it has acquitted Respondent Nos. 2 to 6 of the charges
under Sections 324, 325 and 307 IPC. The matter is remitted back
to the trial court for proceeding further with the trial. The learned
trial court shall take further steps, if required by issuing bailable as
well as non-bailable warrant against the I.O. as well as the Doctor
and by giving them sufficient time to appear on the date fixed in
the matter, the trial court shall proceed further.
26. We would follow the views expressed by this Court
in the case of Brajesh Patel (supra) by recording that the learned
trial court shall give dates which should not be less than four
weeks gap between the date for the I.O. and the Doctor. The
Superintendent of Police, East Champaran is also directed to
render all assistance to the trial court and for this purpose, he is
personally made responsible to ensure execution of warrants of
arrest to secure presence of the I.O. and the Doctor for the trial.
Patna High Court CR. APP (DB) No.1206 of 2024 dt.25-02-2025
27. The Respondent Nos. 2 to 6 shall appear before the
learned trial court on or before 27th March, 2025 and on their
appearance, learned trial court will be at liberty to call upon the
Respondent Nos. 2 to 6 to furnish bail bonds to the satisfaction of
the learned trial court and release them on bail. In case, they do not
surrender/appear in the court below within the prescribed date, the
trial court shall take appropriate coercive action to procure their
appearance.
28. This appeal is allowed.
29. The trial court records be sent back to the trial court
immediately.
(Rajeev Ranjan Prasad, J)
( Ramesh Chand Malviya, J)
lekhi/-
AFR/NAFR
CAV DATE
Uploading Date 28.02.2025
Transmission Date 28.02.2025
