Criminal Appeal (S.J.) No. 180 of 1997 (Appeal against the Judgment and Order dated 30.6.1997 passed by the Sessions Judge, Madhubani, in Sessions Trial No. 182 of 1988.) ------------ 1. LALIT THAKUR, SON OF RAM ASHISH THAKUR 2. DEO NARAYAN THAKUR, SON OF RAM ASHISH THAKUR 3. SURESH THAKUR, SON OF RAJENDRA THAKUR 4. NARESH THAKUR, SON OF RAJENDRA THAKUR 5. PRABODH THAKUR, SON OF RAM PRASAD THAKUR 6. KAILASH THAKUR, SON OF RAM PRASAD THAKUR. 7. UPENDRA THAKUR, SON OF RAM PRASAD THAKUR ALL RESIDENTS OF VILLAGE KATHAILA, P.S. BISFI, DISTT. MADHUBANI. ------- APPELLANTS. Versus THE STATE OF BIHAR ------- RESPONDENT. ---------- For the Appellant : Mr. Ashutosh Kumar, Adv. For the State : Mr. R.B. Roy ‘Raman’ , A.P.P. ---------- P R E S E N T THE HON’BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: This Appeal is being heard without receipt of the lower courts records, since in the Court’s view, it is essential that the case be decided, even without lower court’s records, in view of the fact that the occurrence is of the year 1988 and the Appeal is of the year 1997. The learned counsel for the Appellants has assisted this Court by producing the evidence of witnesses adduced on behalf of the parties. The same are kept on the record. 2. The Appellant Nos. 4, 5, 6 and 7 have been convicted under Sections 147 and 323 of the Indian Penal Code and sentenced to rigorous imprisonment for six months whereas Appellant No. 2 has been convicted under Section 379 of the Indian Penal Code and sentenced to rigorous imprisonment for six months and Appellant No. 3 has been convicted Patna High Court CR. APP (SJ) No.180 of 1997 dt.22-07-2011 2 under Section 325 of the Indian Penal Code and sentenced to rigorous imprisonment for one year. The Appellant No. 1 has been convicted under Section 148 and 324 of the Indian Penal Code and sentenced to one year rigorous imprisonment by the Sessions Judge, Madhubani, in Sessions Trial No. 182 of 1988 by a Judgment dated 30.6.1997. 3. The case of the Complainant/Informant is that the Appellants were his agnates and used to live in their neighborhood and they had an evil eye on their homestead land on account of which there was pending dispute. On 21.10.1988, when the accused persons were seen putting ‘Tatti’ over a portion of homestead land encroaching that of the Complainant, he protested, at which an altercation arose. In course of the same, Appellant Lalit Thakur ordered to assault and, thereafter, he himself hurled a Garasa on the head of the Complainant on account of which he fell down. The said Lalit Thakur once again hurled another Garasa blow which was intercepted by Chhotu Thakur, the brother of the Complainant. The other accused persons also assaulted the Complainant and his brother Chhotu Thakur with lathis. On account of the assault by Suresh, the hand of the Complainant was broken. The accused persons also committed theft of the personal possession of his brother. 4. During trial, the prosecution examined eight witnesses. PW-4 Dr. Prahlad Karak examined the Informant and found four injuries on his person, all of which were caused within 12 hours and except injury No. 4, the rest was simple in nature. Injury No. 4 which was a swelling dorsum of right hand was found to be grievous. PW-7 and PW-8 Birendra Kumar and Subhash Chandra are formal witnesses whereas PW-1 Nathuni Thakur has not supported the case of the prosecution and, therefore, have been declared hostile. PW-2 Raj Kishore Sharma is merely a hear-say witness on the point of seeing the Appellant Lalit and the Complainant Jaikant involved in a quarrel. He has not named any other accused persons. PW- Patna High Court CR. APP (SJ) No.180 of 1997 dt.22-07-2011 3 6, Complainant, has supported the version given by him in his complaint and once again reported that there was dispute with regard to some lands between the parties. PW-3 Chhotu Thakur, the brother of the Complainant stated that on hulla, he went to the place of occurrence and saw the accused persons assaulting his brother and when he intervened, even he was assaulted and theft was committed. PW-5 Kari Thakur also deposed as an eye witness but in his cross-examination, he conceded that when he arrived, he had only seen the two injured. The Investigating Officer has not been examined on behalf of the prosecution. 5. It is an undisputed position that the occurrence took place on account of land litigation and the Appellants were agnates of the Informant. Also the Complaint was filed after four days of the occurrence and there is no independent witness in support of the prosecution case. 6. In light of the non-examination of any independent witness who alone could have lent assurance as to which of the party was aggressor in the background of the land dispute, it would be difficult to sustain the conviction of the Appellants. 7. In the result, the Appeal is allowed. The order of conviction and sentence passed against the Appellants in Sessions Trial No. 182 of 1988 by the Sessions Judge, Madhubani, is hereby set aside. 8. The Appellants are discharged from the liability of their bail bonds. (Anjana Prakash, J.) Patna High Court, Patna Dated, the 22nd July, 2011. NAFR/S.ALI.