Monu Kumar vs The State Of Bihar

(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)

Heard learned Senior Counsel for the appellants and learned Additional Public Prosecutor for the State as also learned counsel for the informant in all the appeals.

These appeals have been preferred for setting aside the judgment of conviction dated 18.11.2022 (hereinafter referred to as the ‘impugned judgment’) and the order of sentence dated 09.12.2022 (hereinafter referred to as the ‘impugned order’) passed by learned Additional Sessions Judge- III, Muzaffarpur (hereinafter referred to as the ‘learned trial court’) in Sessions Trial No. 197 of 2017 arising out of Karja P.S. Case No. 85 of 2016. By the impugned judgment and order, the appellants have been convicted and sentenced as follows:-

The prosecution case is based on the fardbeyan of Suman Kumar recorded by S.I. R.P. Ray of Brahmpura Police Station on 27.07.2016 at General Ward, Bed No. 18 at Prashant Hospital, Muzaffarpur. In the fardbeyan, the informant alleged that on 27.07.2016 at 11:30 Hours, he, his father Yugal Kishore Chaudhary, Uncles Ram Balak Chaudhary & Shiv Chandra Chaudhary @ Gopal Chaudhary and brother Sacchu Kumar Chaudhary were doing some work at the bathan situated in Village- Sapauli, P.S.- Karza, District- Muzaffarpur. All of a sudden, (1) Anjani Chaudhary, (2) Anoj Chaudhary, (3) Deepak Kumar, (4) Monu Kumar, (5) Vikas Kumar Thakur came on tractor loaded with soil, Anjani was driving the tractor. They started filling up the soil on the bathan then the informant’s father Yugal Kishore Chaudhary objected to filling up of the earth then Anjani Kumar said that this person had deposed as a witness against him before police in the case of assault of Vijay and he and his associates must be killed. All the accused persons took up weapons kept in the tractor and Anjani Chaudhary and Vikas Kumar assaulted Yugal Kishore Chaudhary on his face by the backside of spade. When Shiv Chandra Chaudhary @ Gopal Chaudhary came to rescue his brother then again Anjani Chaudhary, Deepak Kumar and Monu Kumar assaulted him on his head from the backside of spade. When Ram Balak Chaudhary came to save them, then Anoj Chaudhary assaulted him by farsa which hit on his hand and his hand got fractured. Thereafter, the informant was assaulted by Anoj Chadhary by farsa on his head and his brother Sacchu was also assaulted. When large number of people gathered on the road, the accused persons fled away with the tractor. The villagers took the injured persons to Prashant Hospital, Juran where in course of treatment, the informant’s uncle Shiv Chandra Mahto @ Gopal Chaudhary died and others were being treated. The reason behind the alleged occurrence is that the informant’s father Yugal Kishore Chaudhary had deposed as a witness against Anjani Chaudhary in a case and he was asking Yugal Kishore Chaudhary not to depose against him, when Yugal Kishore denied then in the garb of soil filling, they had committed the alleged crime.

On the basis of the fardbeyan, Karja P.S. Case No. 85 of 2016 dated 08.07.2016 was registered under Sections 341, 323, 324, 325, 326, 307, 302, 504, 506/34 of the Indian Penal Code (in short ‘IPC’) against (1) Anjani Chaudhary, (2) Anoj Chaudhary, (3) Deepak Kumar, (4) Monu Kumar and (5) Vikas Kumar.

After investigation, police submitted chargesheet bearing Chargesheet No. 144 of 2016 dated 30.09.2016 under Sections 341, 323, 324, 325, 326, 307, 302, 504, 506/34 IPC and Section 27 of the Arms Act against FIR named accused persons.

Learned S.D.J.M., (West) Muzaffarpur vide order dated 21.10.2016 took cognizance of the offences punishable under Sections 341, 323, 324, 325, 326, 307, 302, 504, 506/34 IPC and Section 27 of the Arms Act against (1) Anjani Chaudhary, (2) Anoj Chaudhary, (3) Deepak Kumar, (4) Monu Kumar and (5) Vikas Kumar. Vide order dated 03.03.2017, learned Magistrate committed the records to the court of Sessions.

Thereafter, Sessions Trial No. 197 of 2017 was registered. As the accused, namely, Vikas Kumar was absenting himself during trial, therefore, learned trial court vide order dated 22.06.2018 separated his records.

Charges were read over in Hindi and explained to the appellants which they denied and claimed to be tried. Accordingly, vide order dated 11.07.2018, charges were framed under Sections 341/34, 323/34, 324/34, 325/34, 326/34, 302/34, 307/34, 504/34 and 506/34 IPC and Section 27 of the Arms Act against (1) Anjani Chaudhary, (2) Anoj Chaudhary, (3) Deepak Kumar and (4) Monu Kumar.

In course of trial, the prosecution examined as many as fifteen witnesses and got exhibited various documentary evidences. The description of the prosecution witnesses and the list of documents exhibited on behalf of prosecution are provided hereunder in a tabular form:-

Thereafter, the statements of the appellants under Section 313 Code of Criminal Procedure (in short ‘CrPC’) were recorded in which they pleaded innocence.

The defence examined two witnesses and also produced some documentary evidences. The description of the defence witnesses and the list of documents exhibited on behalf of defence are provided hereunder in a tabular form:-

Learned trial court, after analysing the evidences available on the records, found that there is no material contradictions in the evidence of the prosecution witnesses as to the place of occurrence and the manner of occurrence in which the appellants had committed the offence.

Learned trial court observed that merely because the prosecution did not produce the evidence of independent witnesses, the testimony of the interested witnesses cannot automatically be disbelieved.

Learned trial court found that the defence has argued that there is a land dispute between the parties and for this reason, the prosecution has falsely implicated the appellants, but learned trial court observed that the previous enmity is a double-edged sword, it may motivate one side to lodge a false case while on the other hand, it may also motivate the other side to commit the offence.

Learned trial court after considering the facts and circumstances of the case arrived at a conclusion that the prosecution has completely failed to prove beyond all reasonable doubts the charges framed against the appellants under Sections 341, 324, 326, 307 and 506/34 IPC and Section 27 of the Arms Act. Accordingly, the appellants have been acquitted of the above-mentioned charges.

However, learned trial court observed that the prosecution has succeeded in proving the charges beyond all reasonable doubts against Deepak Kumar and Monu Kumar under Sections 302, 323/34 IPC, against Anjani Kumar Chaudhary under Sections 302, 323 and 504/34 IPC and against Anoj Chaudhary under Sections 323 and 325/34 IPC. Accordingly, they have been convicted and sentenced.

Mr. Ramakant Sharma, learned Senior Counsel assisted by Mr. Prabhakar Jha, learned counsel has led the arguments. Learned Senior Counsel has taken this Court through the deposition of the prosecution witnesses. It is submitted that in this case, PW-1, PW-2 and PW-3 are the three eye witnesses adduced by the prosecution but on a careful scrutiny of their depositions, it would appear that they are not consistent as regards the manner of occurrence. PW-1, namely, Sacchu Kumar Chaudhary claims that he was also injured in the occurrence having been assaulted by Anoj Kumar Chaudhary but his injury report has not been produced by the prosecution. In paragraph ‘48’ of his deposition, PW-1 has denied the suggestion of the defense that he had not stated before the police that his younger brother Suman Kumar (PW-3) was assaulted by Anoj Kumar Chaudhary by a farsa causing injuries to his younger brother. The I.O. (PW-10) has, however, deposed in paragraph ‘35’ of her deposition that Sacchu Chaudhary (PW-1) had not stated in his statement that Anoj had assaulted Suman by farsa in which his younger brother had got injured. In her statement under paragraph ‘36’, PW-10 has further stated that the blood soaked cloth was not made available to her.

Learned Senior Counsel submits that so far as Ram Balak Chaudhary (PW-2) is concerned, he claims to be an injured witness of the occurrence but during investigation, the I.O. was made available only a certificate of Dr. Brajesh Kumar (PW-15) prepared on 15.09.2016, i.e. after more than one and half month. The said certificate on a letter pad (Exhibit ‘13’) would not inspire confidence for the reason that the same is not a contemporaneous document and is not supported by the X-ray plate and the reports of an expert Radiologist.

Learned Senior Counsel further submits that so far as the informant Suman (PW-3) is concerned, he is said to be an injured witness but from his injury report (Exhibit ‘11’) and the deposition of Dr. G.P. Thakur (PW-13), it would appear that PW-3 had received only a superficial lacerated wound on his scalp. The injury found on his back side and the head could have been caused by itching. It is, thus, submitted that PW-1, PW-2 and PW-3 are, in fact, not falling in the category of injured witnesses.

Learned Senior Counsel for the appellants submits that from the evidences available on the record, it would appear that the occurrence took place at 11:30 AM, there is an overwriting in respect of time of the occurrence in the fardbeyan. The fardbeyan has been shown recorded by S.I., R.P Ray at Brahmpur Police Station on 27.07.2016 at 11:30 AM, camp at Prashant Hospital, Muzaffarpur. It is submitted that the timing of occurrence and the recording of fardbeyan cannot be at the same and one time. In the body part of the fardbeyan, the time of recording has been shown by overwriting as 14:30 hours which would create suspicion with regard to the exact time of the recording of the fardbeyan.

Learned Senior Counsel further submits that so far as the place of occurrence is concerned, it is an admitted position that the same is the disputed land. In this connection, the statement of PW-2 in his examination-in-chief and that of the I.O. (PW-10) in paragraph ‘32’ have been placed before this Court. Place of occurrence is admitted.

Learned Senior Counsel has, however, given much emphasis on his submission that the kind of injuries suffered by the deceased Yugal Kishore Chaudhary and Shiv Chandra Chaudhary could not have been caused by a spade (kudal). It is submitted that the backside of the spade (pasa of the kudal) is a heavy iron made part and assault by three persons using the backside of the spade would have resulted in severe compression and fracture of the scalp. It is submitted that the occurrence has taken place at the time of unloading of the soil at the disputed land. There was no premeditation of mind amongst the accused persons. The prosecution side was objecting to the filling of the earth in the disputed land and as per the counter case being Karza P.S. Case No. 98 of 2016 (Exhibit ‘F’), the accused persons have given a different account of the occurrence.

Learned Senior Counsel submits that the occurrence has taken place at 11:30 AM and all the witnesses have stated that large number of persons had assembled at the place of occurrence but the I.O. (PW-10) has not collected evidence of independent witnesses. It is submitted that the I.O. has stated in her deposition that she had recorded the statement of independent witnesses namely, Sita Ram Chaudhary and Lakhindar Chaudhary but in the case diary, she had not recorded that both of them are independent witnesses. It is submitted that Lakhindar Chaudhary (PW-5) is not an eye witness of the occurrence as he has stated in his examination-in-chief that at the time of occurrence, he was in school and got information about the occurrence in the school. His wife had given a phone call and said that an occurrence had taken place.

Learned Senior Counsel submits that both the parties are highly inimical to each other. The deceased Yugal Kishore Chaudhary was a witness against the informant in Karza P.S. Case No. 112 of 2014 dated 12.08.2014 vide Chargesheet No. 186 of 2014 (Exhibit ‘M’). In Karza P.S. Case No. 112 of 2014, the deceased had deposed as a witness on behalf of the informant Vijay Kumar Thakur. In the said case, the accused persons of this case, namely, Anjani and his son were accused. Reference in this regard has been made to Exhibit 'M'. It is, thus, submitted that where the witnesses are highly inimical, even if they claim to be injured witnesses, their testimony would be required to be examined with all circumspection and care.

It is submitted that all the prosecution witnesses, namely, PW-1, PW-2, PW-3, PW-4, PW-5, PW-6 and PW-8 are related to each other, their identical narration of the occurrence would suggest that they are tutored witnesses and are not stating the truth. It would not be possible for the witnesses to reproduce the same minute detail naming the accused, the weapon carried by each people and the part of the body assaulted.

Learned Senior Counsel submits that in any case, conviction of the appellants in Criminal Appeal (DB) No. 169 of 2023, Criminal Appeal (DB) No.177 of 2023 and Criminal Appeal (DB) No. 194 of 2023 for the offences punishable under Section 302/34 IPC would not be sustainable. There being no premeditation of mind and the weapon being one like a spade, which is normally kept in the tractor for purpose of unloading of the materials, would show that these appellants had no intention to kill the deceased Yugal Kishore Chaudhary and Shiv Chandra Chaudhary. It is, thus, submitted that the conviction of the appellants, namely, Deepak Kumar, Monu Kumar and Anjani Kumar Chaudhary for the offences punishable under Sections 302, 323/34 IPC and in case of Anjani Kumar Chaudhary also his additional conviction under Section 504/34 IPC would be liable to be set aside.

It is submitted that so far as the appellant Anoj Kumar Chaudhary in Criminal Appeal (DB) No. 1067 of 2023 is concerned, he has been convicted for the offences under Sections 323 and 325/34 IPC. The learned trial court has erred in taking a view that Anoj Kumar Chaudhary had caused grievous injury upon Ram Balak Chaudhary (PW-2). It is submitted that the certificate of injury (Exhibit '13') proved by Dr. Brajesh Kumar (PW-15) would not inspire confidence of this Court. It is, thus, submitted that in any case, conviction of Anoj Kumar Chaudhary under Section 325 IPC would not be sustainable.

Mr. Ramakant Sharma, learned Senior Counsel has relied upon the judgment of the Hon'ble Supreme Court in the case of Nirmala Bai Devidas Chavhan Vs. State of Maharashtra reported in 2026 SCC OnLine SC 1467 (paragraphs ‘18’, ‘19’, ‘20’, ‘24’, ‘26’, ‘27’, ‘28’, ‘30’ and ‘36’) to submit that non-examination of the independent witnesses would prove fatal to the prosecution. It has also been relied upon to submit that it would be impossible that three persons giving blows by spade on the head of the deceased would have resulted into the kind of injuries found by the doctors in their autopsy reports.

Mr. Alok Kumar, learned Senior Counsel has further added to the submissions of Mr. Ramakant Sharma, learned Senior Counsel. He has drawn our attention towards Exceptions 1 and 4 of Section 300 IPC. It is submitted that, in case, this Court comes to a conclusion that the prosecution has been able to prove the manner of occurrence as alleged, it is required to be considered that the occurrence took place all of a sudden. There was no premeditation of mind and it happened only when the prosecution side objected to the accused persons in filling of earth on the disputed land. It is submitted that the case would be covered by the First and Fourth Exceptions. The sudden and grave provocation came from the side of the prosecution which resulted in the occurrence. It was a case of sudden fight in the heat of passion and without the offender having taken undue advantage or acted in a cruel and unusual manner.

Learned Senior Counsel has relied upon the judgment of the Hon'ble Supreme Court in the case of Abhishek Singh and Others Vs. State of Bihar reported in 2025 (1) BLJ 70.

Mr. Ravi Bhardwaj, learned Advocate representing the informant has opposed these appeals. Learned counsel submits that it is a proven case of assault by a lethal weapon by the accused persons upon the deceased who were unarmed. It is submitted that from the FIR of the counter case (Exhibit ‘F’) itself, it would appear that the defence side has cited all the accused persons of this case as witnesses to the occurrence, therefore, the presence of the accused persons at the place of occurrence cannot be denied. Even from the pattern of cross-examination, it would be evident that the defence has not set up a case that the accused were not present at the place of occurrence. Mahesh Paswan (DW-3) has stated about the place of occurrence, that he was called by the defence side for construction purposes and there the quarrel begun in his presence. It is submitted that the defence side has not brought any evidence on the record to show that any of the persons from the defence side had received any injury at the hand of the prosecution side.

Learned counsel submits that the learned trial court has meticulously examined the evidences available on the record, oral as well as documentary evidences. The trial court has also considered the relevant provisions of Section 300 IPC including the Exceptions which would bring a case in the category of culpable homicide not amounting to murder. Having examined the entire materials only, the learned trial court has held that except Ram Balak Chaudhary, all the prosecution witnesses have stated that the occurrence took place at 11:30 AM. The minor inconsistency in the statement of Ram Balak Chaudhary (PW-2) would not prove fatal to the prosecution case.

It is submitted that in this case, the place of occurrence is admittedly a piece of land which is said to be disputed piece of land. It has been proved by the I.O. (PW-10) and PW-2 has also stated about it. The immediate cause of occurrence is the objection raised by Yugal Kishore and his side on the filling of the earth on the disputed piece of land but there are evidences available on the record in form of earlier FIRs (Exhibit ‘D’, Exhibit ‘F’ as also Exhibit ‘M’) showing that both the parties were on highly inimical terms. It is submitted that once the dispute arose and quarrel took place at the place of occurrence on the point of filling of the earth, the prosecution side formed a common intention to kill the members of the prosecution side who were objecting to the filling of the earth. It is submitted that to form common intention, there is no need to prove premeditation prior to start of the occurrence. Common intention may be formed even at the spot. In this case, the informant (PW-3) has stated in his fardbeyan that immediately after the prosecution side was asked not to unload the soil on the disputed land, the accused Anjani Chaudhary said that Yugal Kishore had deposed as a witness in the case in which Vijay was assaulted, therefore, today all of them should be killed. It is submitted that, at this stage, the common intention was formed by all the accused persons. They have individually caused injuries upon the deceased which were likely to cause death in ordinary course of nature, therefore, Deepak and Monu have been rightly convicted under Sections 302 and 323/34 IPC whereas Anjani Kumar Chaudhary has been convicted for the offences under Sections 302, 323, 504/34 IPC.

It is submitted that so far as Anoj Kumar Chaudhary is concerned, the learned trial court has found that he had caused grievous injury to PW-2 and had also caused simple injury to PW-1 and PW-3, therefore, in his case also, the learned trial court has taken a correct view to convict him under Section 323 and Section 325 IPC.

Learned Additional Public Prosecutor for the State has also opposed the appeals and endorsed the submissions of learned counsel for the informant.

We have heard learned counsel for the parties and learned Additional Public Prosecutor for the State, as also perused the trial court's records. Learned Senior Counsel for the appellants has, though, initially raised a submission that there is an overwriting in the fardbeyan of PW-3 as regards the time of occurrence, but soon learned Senior Counsel realized that it was only a slip of pen and no serious issue would arise out of it. The occurrence took place on 27.07.2016 at 11:30 AM. While recording the fardbeyan of PW-3, the S.I. R.P. Ray recorded the time of recording of fardbeyan at 11:30 AM, but in the body, it has been mentioned as 14:30 hours. From the formal FIR, it would appear that on receipt of the fardbeyan from Brahmpura police station, it was registered on 28.07.2016 at 17:15 hours. The I.O. (PW-10) has proved the endorsement made on the fardbeyan in her writing and under her signature. This has, therefore, been marked Exhibit ‘5’. The time of occurrence is the same and one as stated in the FIR of counter case (Exhibit ‘F’).

As recorded hereinabove, the place of occurrence is not in dispute. It is said to be a disputed piece of land where the occurrence took place. From the evidences available on the record, it appears that the parties were on inimical terms. Exhibit ‘D’ has been brought on record to show that Kanti P.S. Case No. 215 of 2009 dated 21.10.2009 was lodged by Anjani Kumar Chaudhary against Yugal Kishore Chaudhary, and in the said case Ram Balak Chaudhary, Sacchu Chaudhary and Suman Chaudhary are shown as accused. Similarly, Exhibit ‘G’ is the copy of the final form/report bearing No. 22 of 2017, dated 28.02.2017 in Karza P.S. Case No. 98 of 2016, dated 01.09.2016, registered under Sections 341, 323 and 504/34 IPC. This case was lodged by Anjani Kumar Chaudhary against Suman Chaudhary and Chhotu Chaudhary, both sons of Late Yugal Kishore Chaudhary, Ram Balak Chaudhary and Nawal Kishore Chaudhary. From Exhibit ‘G’, it appears that police had found the case true against the accused persons and submitted the chargesheet.

Exhibit ‘F’ is the copy of the FIR giving rise to Karza P.S. Case No. 98 of 2016, from which it would appear that this is a counter case registered with respect to the occurrence which took place on 27.07.2016 at 11:00 AM. In this case, Anjani Kumar Chaudhary has stated that when he was filling up the earth on the land of his bathan by a tractor, the accused persons came there armed with lathi, rod and weapons, they abused and asked them not to fill up the earth. He alleged that Yugal Kishore Chaudhary instigated the other accused persons to kill the informant and his side, whereupon all the accused persons started assaulting the informant by lathi and rod. The informant has claimed in his complaint that he was badly assaulted. This Court finds that this complaint was filed under Section 156(3) Cr.PC which was sent to police for registering the FIR. This complaint was filed on 28.07.2016, however, there is nothing on the record to show that prior to filing of this complaint under Section 156(3) Cr.PC, the informant had complied with the requirement of Section 154(3) Cr.PC. The complaint is also not filed on the affidavit as required by virtue of the judgment of the Hon'ble Supreme Court in the case of Priyanka Srivastava & Another Vs. State of Uttar Pradesh & Others reported in (2015) 6 SCC 287.

There is one more FIR being Karza P.S. Case No. 112 of 2014 dated 12.08.2014 registered under Sections 147, 148, 341, 323, 324, 307, 379, 504 and 506 IPC lodged by one Vijay Kumar Thakur. In this case, Anjani Chaudhary, Vikas Kumar and some other persons are accused. It is, this case in which Yugal Kishore Thakur is said to have deposed as a witness. The defence side, led by Anjani Kumar Chaudhary, was aggrieved by this. PW-3 has stated that when Yugal Kishore Chaudhary objected to the filling up of the earth, Anjani Kumar Chaudhary shouted that he had deposed as a witness in the case of assault upon Vijay, therefore, he should be killed.

This Court, therefore, finds that the parties were on inimical terms, but then a question arises as to whether only because the prosecution side was on inimical terms with the defence side, the prosecution case would be liable to fail. The answer to this proposition is in negative. In the case of Piara Singh vs. State of Punjab reported in (1977) 4 SCC 452, the Hon'ble Supreme Court has held that where the injured witnesses are inimical witnesses, their testimonies would be required to be scrutinized with all circumspection and care. The relevant paragraph from the judgment of the Hon'ble Supreme Court is quoted hereunder for a ready reference:-

At this stage, we will take a glance over the evidence of the injured witnesses. Sacchu Kumar Chaudhary @ Chhotu Kumar (PW-1) has deposed that Anjani Kumar Chaudhary and Vikas Kumar Thakur had assaulted upon Yugal Kishore Chaudhary (deceased) by a spade on his mouth and his head, causing grievous injuries, as a result whereof he fell down. This witness has further stated that his uncle Shiv Chandra Chaudhary @ Gopal Chaudhary came to save his father, then Anjani Chaudhary, Deepak Kumar and Monu Kumar assaulted him by the pasa of the spade (backside of the spade) on his head. Then Ram Balak Chaudhary (PW-2) came to save, then Anoj Chaudhary assaulted him by the backside of farsa, which caused fracture of his left hand. Thereafter, his younger brother Suman Kumar came to save, then Anoj Chaudhary assaulted him by farsa on his head, and then this witness states that he was also assaulted by Anoj, causing fracture of his left thumb. This witness has stated that many people assembled on the road whereafter the accused persons fled away with their tractor. The villagers brought the injured persons to Prashant Hospital, Juran Chapra, Muzaffarpur for treatment, where in course of his treatment, his uncle died on 27.07.2016. His father Yugal Kishore also died during his treatment. He has stated that the reason of the occurrence is the deposition of Yugal Kishore Chaudhary in Karza P.S. Case No. 112 of 2014. In the garb of this filling up of the earth, the accused persons had caused the occurrence. This witness has proved his signature on the inquest report prepared by Brahmpur Daroga Ji in the Prashant hospital. In his cross-examination, this witness has stated that the accused persons are also co-sharers. He has shown his unawareness about the pending title suit over the land dispute. He has stated that the place of occurrence is a plot of land in which both the sides have got share. From the eastern side, the accused persons have their share, and from the western side, the informant side has got his share. He has stated that on the date of occurrence, he was in his house. Apart from him, his father, uncle and younger brother Suman Kumar were also there. He has given the description of the place of occurrence, which fully tallies with the description given by the I.O. (PW-10). In paragraph ‘42’ of his deposition, PW-1 has categorically stated that no one amongst the accused persons had been injured. He denied the suggestion of the defence that the prosecution side had indulged in causing assault on Anjani Chaudhary as a result whereof Anjani Chaudhary had been injured and he was being treated. Even as PW-1 has denied the suggestion of the defence on this point, we find that the defence has not led any evidence to prove that Anjani Chaudhary had suffered any injury in the said occurrence. This witness has stated that his treatment had taken place in Sadar Hospital and he can produce the document but no document showing injury to him has been produced.

From the deposition of PW-1, we find that the defence has not been able to create any doubt in the testimony of this witness. This witness has proved the date, time and manner of occurrence. He has narrated how the occurrence broke out, and who were the persons indulged in causing assault upon his father, uncle, him and other two injured persons. It is not one of those cases in which large number of accused are involved. In the facts of the present case, it cannot be said that it would not have been possible for PW-1 to identify the accused so as to name each one of them with the precise details of the manner in which they had caused occurrence.

Ram Balak Chaudhary (PW-2) is the another witness who has stated about the occurrence. He is fully consistent with the evidence of PW-1. He has also stated that Yugal Kishore Chaudhary was assaulted by Anjani Chaudhary and Vikas Kumar Thakur on his head and mouth, whereas Shiv Chandra Chaudhary @ Gopal Chaudhary was assaulted by the same accused persons using the backside of the spade. This witness has stated that Anoj Chaudhary had assaulted him by backside of farsa on his left hand, as a result whereof his hand was fractured. He has stated that Suman (PW-3) was assaulted by Anoj Chaudhary by farsa on his head, and he had also assaulted Sacchu (PW-1). In course of cross-examination, he has stated that the occurrence took place all of a sudden. He has shown his unawareness about the partition case between Rameshwar versus Badrinath. He had lodged a Case No. 1722 of 2009 against Anjani Chaudhary, Anoj and others, but he had left the pairvi of the said case. He was not aware that after long time pendency of the said case, the decision has gone in favour of the accused persons. He has stated about his presence at the bathan at the time of occurrence. The defence suggested that Anjani Kumar was filling up the earth on his own share of land, this witness denied the suggestion. This witness has stated that when he reached the place of occurrence, he found that his brother was standing and accused persons were assaulting. For 5-10 minutes they had assaulted, and when he went to save, then Anoj Chaudhary had assaulted him. His nephew had become unconscious after receiving the assaults, but he had not become unconscious. He had made his statement before Daroga Ji on 29^th. This witness denied the suggestion of the defence that in this occurrence, the prosecution side had assaulted the accused persons.

On going through the evidence of PW-2, this Court finds that his testimony duly proves the date, time and manner of occurrence. He is consistent with PW-1. The defence has not elicited any inconsistency or contradiction in the evidence of PW-2.

Suman Kumar (PW-3) is the informant of this case. He has supported the prosecution case. He is consistent in his examination-in-chief as regards the date, time and manner of occurrence. As recorded hereinabove, the place of occurrence is not in dispute. This witness has stated that he had given his statement to Daroga Ji in Prashant Hospital, Juran Chapra, Muzaffarpur. He had put his signature thereon and Ashok Pandey had put his signature as a witness. He has stated that Yugal Kishore Chaudhary, Shiv Chandra @ Gopal Chaudhary, and he was himself treated in Prashant Hospital, whereas Ram Balak Chaudhary (PW-2) was treated by Dr. Brajesh Kumar, Juran Chapra, Muzaffarpur. Sacchu Chaudhary (PW-1) was treated in Sadar Hospital, Muzaffarpur. He identified the accused persons in the dock. This witness denied the suggestion of the defence that Monu was living in village ‘Sain’ and was studying there. This witness was suggested by the defence that on the date of occurrence, Monu was not in the village and that this witness was making a wrong statement. This witness denied the suggestion. In this regard, we find that the defence has not led any evidence bringing plausible materials to show that Monu was living in village ‘Sain’ and that he was not present in the village where the occurrence took place. He has stated that he was present at the place of occurrence. This witness has stated that Shiv Chandra Chaudhary and Yugal Kishore Chaudhary were not in conscious condition. About himself, his brother Sacchu (PW-1) and Ram Balak (PW-2), he has stated that they were in conscious condition. In paragraph ‘27’, this witness has stated that he had not seen any injury on the body of the accused persons. This witness also denied the suggestion that at the time of occurrence, Anoj Chaudhary was engaged in grazing of she-buffalo, and the witness further denied the suggestion of the defence that to usurp the land of Ram Chandra Chaudhary, he had made Anoj Chaudhary and Monu Chaudhary accused in this case. He denied his awareness about Title Appeal No. 95 of 2003 (Ram Chandra Chaudhary versus Rameshwar Chaudhary). He also denied his knowledge about Title Suit No. 73 of 2004.

On going through the entire deposition of PW-3, this Court finds that the informant has fully supported the prosecution case and has remained consistent.

We are of the considered opinion that from their depositions, PW-1, PW-2 and PW-3 would fall in the category of eye witnesses of the occurrence.

At this stage, we find from the evidence of the I.O. Kumkum Kumari (PW-10) that she has proved the place of occurrence. She had collected the inquest report of Shiv Chandra Chaudhary and Yugal Kishore Chaudhary and postmortem report of Yugal Kishore Chaudhary and Shiv Chandra Chaudhary. PW-10 had also collected the injury reports of Suman Kumar Chaudhary and Sacchu Kumar. She had received the injury report of Ram Balak Chaudhary and recorded it in the case diary. She had seized the tractor by which the earth was being carried, however, she had not found any blood there. She had not conducted any investigation with respect to the share and partition of the land. The witnesses told her that the occurrence took place because of the cases between the parties. We find that so far as the place of occurrence is concerned, it is not in dispute. The evidence of the I.O. (PW-10) is corroborating the evidence of the prosecution witnesses as discussed hereinabove. We have noticed that in paragraph ‘48’ of the deposition of PW-1, he was suggested by the defence that during his statement before police, he had not stated that his younger brother Suman (PW-3) was assaulted by Anoj Chaudhary on his head by farsa, as a result whereof his younger brother had become injured. PW-1 had denied the said suggestion, but the I.O. (PW-10) has stated in paragraph ‘35’ of her deposition that Sacchu Chaudhary had not stated in his statement that Anoj had assaulted Suman by farsa, as a result whereof he had become injured. Thus, this Court records that as regards injuries caused to Sacchu (PW-1) by Anoj, the defence has drawn a contradiction in the statement of Sacchu Choudhary (PW-1). There is no injury report of PW-1. It is, however, evident that the injury of Suman (PW-3) has been proved by Dr. G.P. Thakur (PW-13), and it is on record in form of Exhibit ‘11’. Suman (PW-3) has attributed this injury to Anoj Choudhary.

Since learned Senior Counsel(s) for the appellants have made a submission that the kind of injury suffered by the deceased could not have been caused by pasa of the spade (backside of the spade), this Court would extract the kind of injuries found by Dr. Vijay Kumar Prasad (PW-11), who had conducted autopsy on the dead body of Yugal Kishore Choudhary, and the deposition of Dr. Alok Ranjan (PW-14), who had conducted autopsy on the dead body of Shiv Chandra Choudhary @ Gopal. The injuries found by them on the deceased in the postmortem report are being extracted hereunder in a chronological order:-

We refer to the deposition of PW-11 who has proved the postmortem report of Yugal Kishore Chaudhary (Exhibit ‘7’). In his deposition, he mentions three stitch wounds on the right side of head and one stitch wound near right ear. PW-11 has also mentioned about lacerated wound and abrasions found on the dead body. In his opinion, the deceased died due to haemorrhage and shock due to above mentioned injuries caused by hard and blunt object. In his cross-examination, this witness denied the suggestion that, in his opinion, he had wrongly stated about haemorrhage because he had not seen bleeding. On the suggestion by the defence that whether this injury may be caused due to fall on hard object, the doctor (PW-11) has clearly stated that the injuries may be caused due to fall on hard object and also by causing assault.

This Court finds that PW-14, who conducted autopsy on the dead body of the deceased Shiv Chandra, had also found multiple injuries on the body of the deceased, and those were on the head. He had noticed multiple fractures on skull bone with laceration of brain substance. The depositions of PW-11 and PW-14 clearly establish a case of brutal assault upon Yugal Kishore and Shiv Chandra. It is required to be noticed here that the defence never suggested these doctors that the kind of injuries found on their bodies could not have been caused by assault using the backside of the spade (pasa of the kudal). We are of the considered opinion that the defence never set up its case in the manner as has been argued before this Court, as regards the kind of injuries corresponding to the weapon used. The evidences on the record, particularly that of PW-11 and PW-14, establish that multiple injuries were caused on the vital parts of the body of the deceased and repeated injuries were caused. Thus, we find that even as the quarrel broke open in the spur of the moment on the point of filling up of the earth, but on the spot, there was a meeting of mind among the accused persons to kill Yugal Kishore and Shiv Chandra. It is with this meeting of mind that the appellants Anjani, Deepak and Monu all assaulted Yugal Kishore and Shiv Chandra repeatedly, causing serious life-threatening injuries on the vital parts of their bodies, which ultimately proved fatal, and they died within two days of the occurrence.

In the case of Krishnamurthy alias Gunodu and Ors. vs. State of Karnataka reported in 2022 7 SCC 521, the Hon’ble Supreme Court has held that common intention may be formed in course of occurrence. The relevant paragraph is being reproduced hereunder:-

We would also notice from the evidences that she had received the injury report of Suman Kumar (PW-3) and the injured Sachhu Chaudhary (PW-1), in fact, the requisition of the I.O. sent to the Mecial Officer, Sadar Hospital, Muzaffarpur and on the back of the same, the endorsement are available on the record but the same has not been exhibited. It, however, lends support to the statement of the I.O. that Sachhu had complained of pain in his left thumb and had gone to the OPD.

We have further considered the evidence of Dr. Brajesh Kumar (PW-15). It is stated that PW-2 was treated by PW-15, but there is no contemporaneous document showing his treatment by PW-15 immediately after the occurrence. What has been brought on record is a kind of certificate prepared on 15.09.2016 under signature of PW-15. It has been marked Exhibit ‘13’. Exhibit ‘13’ is on a letter pad of Dr. Brajesh Kumar, which has been prepared after one and a half month of the occurrence. To this Court, Exhibit ‘13’ would not inspire confidence to take a view that the prosecution has been able to prove fracture of left hand of PW-2 due to assault caused by Anoj Kumar. This would take us to take a view that the learned trial court has not duly appreciated Exhibit ‘13’. In absence of any contemporaneous document showing treatment of PW-2 for fracture of his hand, in absence of the X-ray plate together with the report of the radiologist of the relevant period, it would not be safe to take Exhibit ‘13’ as a sacrosanct document so as to record a finding of causing grievous injury on PW-2 by Anoj Kumar.

We are, therefore, of the opinion that the charge under Section 325 IPC is not proved beyond all reasonable doubts against Anoj Kumar. So far as the informant (PW-3) is concerned, he had been examined by Dr. G. P. Thakur (PW-13) who had noticed the following injuries on PW-3:-

In his cross-examination, PW-13 has stated that so far as injury no. 1 is concerned, it was a superficial injury and injury no. 2 might have been caused by itching. We, therefore, find that the injuries present on the body of PW-3 are simple in nature, said to have been caused by hard and blunt substance.

In the kind of materials present on the record, the conviction of the appellant Anoj Kumar may only be sustained under Section 323 IPC.

Learned Senior Counsel(s) for the appellants has though taken a plea that according to the prosecution witnesses, many persons had assembled at the place of occurrence, but no independent witness has been examined on behalf of the prosecution. We are of the opinion that in the facts of the present case, where the eye witnesses, like PW-1, PW-2 and PW-3, are present, it is not required to the prosecution to produce a large number of witnesses. And further, in the present day's conditions, where nobody wants to become a witness to an occurrence, no adverse inference may be drawn only because no one from the crowd which had assembled at the place of occurrence has deposed to support the prosecution case. We find no reason to accept this plea of the appellants.

Mr. Alok Kumar, learned Senior Counsel for the appellant has relied upon the judgment of the learned coordinate Bench of this Court in the case of Abhishek Singh (supra). We have gone through the said judgment and found that the said judgment was rendered in a completely different fact situation. In paragraph ‘28.7’ of the said judgment, the Hon'ble Division Bench has held that “there are major contradictions, improvements, inconsistencies in the deposition of PW-3 and other prosecution witnesses. Thus, simply relying upon the deposition given by so-called injured witnesses, conviction cannot be recorded”.

We are of the considered opinion that the facts and evidences available in these appeals are quite different and distinct. In this case, the prosecution witnesses have been found consistent and the prosecution has been able to demonstrate that what has been stated by them as eye witnesses to the occurrence are also getting corroborated from the medical evidences adduced through the doctors. We have already discussed the same hereinabove.

Lastly, learned Senior Counsel for the appellant has requested this Court to consider that the case would at best fall in the category of first and fourth Exception of Section 300 IPC. We have considered the said submission, however, on a thoughtful consideration, we find that the submissions in this regard are liable to be rejected at the threshold. According to the First Exception of Section 300 IPC, a culpable homicide is not murder if the offender, whilst still deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. On going through the entire deposition, we find that the defence has never set up its case under Exception 1 to Section 300 IPC. No evidence in this regard has been made. The evidences available on the record neither show that it was a case of grave and sudden provocation nor it shows that the accused persons were deprived of the power of self-control due to a grave and sudden provocation.

Similarly, when we go through Exception 4, it is found that this would be attracted only where a culpable homicide is committed without premeditation, in a sudden fight, in the heat of passion, upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. In this case, we have, though, noticed that the quarrel started without premeditation of mind, but immediately in course of the said quarrel because of the prior enmity, the accused persons formed a common intention to kill the deceased persons, and because of that common intention, all the three, namely Anjani, Deepak and Monu, assaulted the deceased persons several times, causing multiple injuries on their bodies on the vital part, and taking undue advantage of their being unarmed, the accused persons caused brutal assault. This is not a case in which the accused gave one single blow in the heat of passion. The spade is a lethal weapon which has been used as assault weapon. The accused persons have, though, taken a plea that Anjani was assaulted and he had received injury, but there is no evidence in this regard, therefore, it is held that the kind of attack made by the accused persons upon the deceased, they acted in a cruel and unusual manner. We are, therefore, of the opinion that neither of the two exceptions on which reliance has been placed on behalf of the appellants would be applicable in the present case.

In the light of the aforesaid discussions, we have perused the learned trial court's records. We find no reason to interfere with the judgment of the learned trial court as regards the conviction and sentence of the appellants Anjani Chaudhary @ Anjani Kumar in Criminal Appeal (DB) No. 194 of 2023, Deepak Kumar in Criminal Appeal (DB) No. 177 of 2023 and Monu Kumar in Criminal Appeal (DB) No. 169 of 2023. Their appeals are, therefore, dismissed.

So far as Anoj Kumar Chaudhary (Criminal Appeal (DB) No. 1067 of 2023 is concerned, we have upheld his conviction only under Section 323 IPC. This Court has been informed that he remained in jail for one year nine months before his sentence was suspended by this Court. The maximum sentence which may be awarded under Section 323 IPC is a period of one year. His conviction under Section 325 IPC is set aside. Since he has already stayed for a period more than one year, he and his sureties are discharged from the liabilities of the bail bonds. Criminal appeal (DB) No. 1067 of 2023 is partly allowed.