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Judgment
Shree Chandrashekhar, J
Nine persons were named as accused in Potka P.S. Case No. 57 of 1988 which was registered under sections 147,148,149,341,323,379 and 307 IPC and under section 4 & 5 of the Explosive Substance Act, on the basis of fardbeyan of Tapan Kumar Bhakta which was recorded on 12.6.1988.
The accused persons, namely, Fakir Bhakat, Pyara Mohan Bhakat, Duryodhan Bhakat, Ram Krishna Bhakat, Harish Chandra Bhakat, Dhaneshwar Bhakat, Budheshwar Bhakat , Abodh Bhakat and Rudra Bhakat were sent up for trial on the charge under section 307/149 IPC; separate charges under section 307 IPC were framed against the appellants, namely, Duryodhan Bhakat and Abodh Bhakat.
Vide order dated 13.2.2001, the appellants, namely, Fakir Bhakat @ Phakir Chandra Bhakat, Pyara Mohan Bhakat, Duryodhan Bhakat, Ram Krishna Bhakat, Harishchandra Bhakat, Dhaneshwar Bhagat, Budeshwar Bhakat, Abodh Bhakat and Rudra Bhakat have been granted bail by this Court.
Vide order dated 25.6.2019, this criminal appeal qua the appellant No.6, namely, Dhaneshwar Bhakat and appellant No.9, namely, Rudra Bhakat on their death stood abated.
During the trial, the prosecution has examined altogether six witnesses; the informant is PW-5 and his father, namely, Shishir Kumar Bhakat is PW-1.
Dr. Badri Prasad Gupta who has examined Tapan Kuma Bhakat has found one incised wound measuring 2"x1/2" skin deep on the middle of his head about 3 & ½" above his left ear. The doctor has also found swelling and abrasions on Tapan Kumar Bhakat.
The learned trial judge has held that the injury on head of Tapan Kumar Bhakat, head being a vital part of the body, would attract the offence under section 307 IPC and, accordingly, held the accused persons, namely, Duryodhan Bhakat and Abodh Bhakat guilty for attempt to murder and the other seven accused persons have been held guilty under section 307/149 IPC.
At the outset, we intend to record that there is no finding recorded by the learned judge on common intention of all to attempt to murder Tapan Kumar Bhakat.
The prosecution story as narrated by the informant in his fardbeyan goes on like this; on 12.6.1988 at about 4 p.m. the accused persons were fishing in the raiyati tank recorded in the name of Gokhul Bihari Dutta at village Kalikapur. Upon such information Shailendra Dutta and Ardhendu Dutta, both son of Gokul Bihari Dutta, went there and protested fishing by the accused persons whereupon they assaulted them and threatened to kill them. The informant has alleged that he was assaulted by Abodh with Sabal and the accused persons, namely, Rudra Bhakat and Fakir Bhakat assaulted Ardhendu and Shailendra by Lathi. He has further alleged that Duryodhan Bhakat dragged his father into the tank and attempted to kill him by drowning. However, the other persons intervened and saved him.
In the court, the informant has admitted that the pond in which Abodh Bhakat and Duryodhan Bhakat were fishing belongs to Hiranya Bhakat, father of Duryodhan Bhakat. The other prosecution witnesses, particularly PW-2 and PW-3, have admitted that settlement of the pond in favour of Hiranya Bhakat was challenged by them before the High Court. It has come in the prosecution's evidence that on the day of occurrence the pond was in possession of Duryodhan Bhakat. The manner of occurrence as narrated by the prosecution witnesses--PW-1, PW-2, PW-3 and PW-4 would indicate that when the members of the prosecution party raised objection to fishing from the pond by Duryodhan Bhakat and Abodh Bhakat an altercation took place between them. At this juncture, it cannot be inferred that the accused persons had shared common intention to do an act resulting into attempt to murder Tapan Kumar Bhakat. It also cannot be inferred that they had gone to the pond armed, anticipating an altercation with the members of the prosecution party. From the evidences laid in S.T. No. 283 of 1990, it appears that during altercation one of the appellants has resisted the members of the prosecution party by using Sabal. It has also come in the evidence that a counter case was lodged by the accused persons, however, its record was not produced in S.T. No. 283 of 1990.
The informant has alleged in his fardbeyan that the appellant, namely, Abodh Bhakat has assaulted him with Sabal and the appellants, namely, Rudra Bhakat and Fakir Bhakat assaulted him with Lathi. However, in the Court he has said that PW-2 Ardhendu Dutta and PW-3 Shailendra Nath Dutta have not suffered any injury in the occurrence.
The Investigating Officer of the case has not been examined during the trial.
The alleged weapon, namely, Sabal has not been produced by the prosecution during the trial and during his cross-examination, Dr. Badri Prasad Gupta-PW-6 has stated that the injuries found on Tapan Kumar Bhakat were simple in nature. He has stated that Sabal is a hard and blunt substance and to a suggestion by the defence whether incised wound can be caused by Sabal, he has stated (Para-6) that incised wound cannot be caused by Sabal. He has also admitted that all other injuries, such as, abrasions and bruises found on Tapan Kumar Dutta can be caused by fall on hard surface.
Admittedly, an altercation has taken place between the accused persons and the members of the prosecution party. The father of Duryodhan Bhakat, namely, Hiranya Bhakat was in possession of the pond in which the accused persons had gone for fishing. The offence under section 307 IPC provides that any act done with such intention or knowledge, and under such circumstances, if accompliced would have caused death, the assaulter shall be guilty of murder. The injury on Tapan Kumar Bhakat has been found by the doctor simple in nature. The manner of occurrence as described by the informant and other prosecution witnesses and the injury caused to the informant would not establish that assault on the informant by Abodh Bhakat would have caused his death. In the above facts, we hold that the prosecution has failed to prove the charge under section 307/149 IPC against the appellants, namely, Fakir Bhakat @ Phakir Chandra Bhakat, Pyara Mohan Bhakat, Ram Krishna Bhakat, Harishchandra Bhakat and Budheshwar Bhakat and, accordingly, their conviction under section 307/149 IPC is set-aside.
From the evidences as laid by the prosecution during the trial, we find that complicity of the appellants, namely, Fakir Bhakat @ Phakir Chandra Bhakat, Pyara Mohan Bhakat, Ram Krishna Bhakat, Harishchandra Bhakat and Budheshwar Bhakat in the occurrence is not proved.
Accordingly, the appellants, namely, Fakir Bhakat @ Phakir Chandra Bhakat, Pyara Mohan Bhakat, Ram Krishna Bhakat, Harishchandra Bhakat and Budheshwar Bhakat are acquitted of the charges framed against them.
The order of conviction of these appellants under section 307/149 IPC and the sentence inflicted upon them for the said offence are set-aside. The appellants, who are on bail, are discharged of the liability of bail-bonds furnished by them.
The prosecution has also failed to establish charge under section 307 IPC against the appellants, namely, Duryodhan Bhakat and Abodh Bhakat.
The conviction of the appellants, namely, Duryodhan Bhakat and Abodh Bhakat and the order of sentence passed against them in S.T. No. 283 of 1990 are set-aside.
The appellant Duryodhan Bhakat, who is on bail, is discharged of the liability of bail bonds furnished by him.
Insofar as the appellant, namely, Abodh Bhakat is concerned, we hold that he is liable to be convicted under section 324 IPC.
On the question of sentence, we find that it was the first offence by Abodh Bhakat and he has not acted with cruelty. Section 361 Cr.P.C. mandates that Section 360 Cr.P.C. is mandatory in nature. However, the learned trial judge has failed to consider the provision under section 360 Cr.P.C. The First Information Report was lodged in 1988 and the Sessions Trial No. 283 of 1990 has concluded in the year 2001. In view of the nature of the evidences brought on record by the prosecution in S.T. No. 283 of 1990, we are inclined to grant benefit under section 4 of Probation of Offenders Act to the appellant, namely, Abodh Bhakat. He shall furnish a bond of Rs. 10,000/ with an undertaking that he shall maintain peace and good behavior for three years. He shall pay compensation of Rs. 10,000/- to the informant, namely, Tapan Kumar Bhakat.
The appellant, namely, Abodh Bhakat, who is on bail, on furnishing the bond and deposit of the compensation amount shall be discharged of the liability of bail-bonds furnished by him.
Cr.Appeal (DB) No. 40 of 2001 is partly allowed.
Let lower court record be transmitted to the Court concerned, forthwith.