Patna High Court
Arjun Rai vs The State Of Bihar on 12 February, 2025
Author: Mohit Kumar Shah
Bench: Mohit Kumar Shah, Shailendra Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.700 of 2016
Arising Out of PS. Case No.-37 Year-2005 Thana- TAJPUR District- Samastipur
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Arjun Rai son of Late Ram Uchit Rai, resident of Village-Keshonarainpur,
P.S. Tajpur Halai, District Samastipur.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
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Appearance:
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
Ms. Vaishnavi Singh, Advocate
Mr. Ritwik Thakur, Advocate
For the State : Mr. Ajay Mishra, APP
For the Informant : Mr. Suraj Narayan Yadav, Advocate
Mr. Bijay Bhushan, Advocate
Mr. Ashok Kumar, Advocate
Mr. Mansoon Alam, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
and
HONOURABLE MR. JUSTICE SHAILENDRA SINGH
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH)
Date: 12.02.2025
The present appeal under Section 374(2) read with Section
389(1) of the Code of Criminal Procedure, 1973 (hereinafter
referred to as "CrPC") has been preferred against the judgment of
conviction and order of sentence dated 06.06.2016 and
08.06.2016
, respectively, passed in Sessions Trial No. 684 of 2005
(arising out of Tajpur (Halai O.P.) P.S. Case No. 37 of 2005) by the
learned Additional District and Sessions Judge-2nd, Samastipur
(hereinafter referred to as "learned Trial Judge"). By the said
Patna High Court CR. APP (DB) No.700 of 2016 dt.12.02.2025
judgment, the learned Trial Judge has convicted the appellant for
commission of the offences, under Sections 302 and 379 of the
Indian Penal Code (hereinafter referred to as "IPC") and has
sentenced him to undergo rigorous imprisonment for life under
Section 302 of the IPC with fine of Rs.50,000/- and in default he
has been directed to undergo rigorous imprisonment for a further
period of six months separately. The appellant has been further
sentenced under Section 379 of the IPC to undergo rigorous
imprisonment for a period of three years. Both the sentences have
been ordered to run concurrently.
2. Short facts of the case are that on 09.02.2005, at about
14:30 hours, the fardbeyan of the deceased-informant was
recorded at Sadar Hospital, Samastipur by the Sub-Inspector of
Police, Town Police Station, wherein he has stated that on
09.02.2005 at about 9:00 a.m., while he was going from his
house to Samastipur Court he had asked his son, namely Sanjay
to come along with him, however he said that he would come
after sometime hence, he had left his house after 15-20 minutes
on his new green cycle along with the documents of title suit
and a sum of Rs.1500/- and when he had travelled for about one
kilometer and reached near the pond, the accused persons
namely, Arjun Rai (Appellant), Subodh Rai, Nand Kishore Rai,
Patna High Court CR. APP (DB) No.700 of 2016 dt.12.02.2025
Sanjeet Rai and Ranjeet Rai, who were present there from
before, armed with lathi and khanti had surrounded the
deceased-informant whereupon Arjun Rai (Appellant) had
exhorted other accused persons to assault the deceased-
informant and kill him, whereafter Arjun Rai (Appellant) had
assaulted the deceased-informant with khanti with an intention
to kill him, however, he had obstructed with his right hand,
resulting his hand being fractured. Thereafter, Arjun Rai
(Appellant) had assaulted the deceased-informant with khanti on
his stomach and tried to insert it inside the stomach, however,
the deceased-informant had obstructed it with his right hand
resulting in his elbow being fractured. The deceased-informant
had then fallen down, whereafter Subodh Rai, who was armed
with khanti had assaulted the deceased-informant on his right
leg knee, leading to blood oozing out from there. Then Ranjeet
Rai and Sanjeet Rai, with an intention to kill the deceased-
informant had repeatedly assaulted him by lathi leading to the
portion below the right leg being fractured. Thereafter, Nand
Kishore Rai had sat on the chest of the deceased-informant and
with the butt of pistol, he had assaulted on the chest of the
deceased-informant as also had pressed his neck. The deceased-
informant had then raised an alarm, resulting in his son namely,
Patna High Court CR. APP (DB) No.700 of 2016 dt.12.02.2025
Sanjay Kumar Sharma (P.W.5) and co-villagers, namely Pandav
Singh and Ram Singh having arrived there, whereafter Arjun
Rai had taken out the case file from the bicycle of the deceased-
informant and Nand Kishore Rai had taken out a sum of
Rs.1500/- from the pocket of the deceased-informant and then
all the accused persons had fled away. The deceased-informant
has further stated that he was then taken to Sadar Hospital in an
injured condition and on the way, he had become unconscious
however, subsequently he regained consciousness at the hospital
where he has given his statement. The statement was read over
to the deceased-informant and after finding the same to be
correct, the deceased-informant had put his left thumb
impression on the fardbeyan since he had received injury on his
hand and was unable to put his signature.
3. After recording of the fardbeyan, a formal FIR bearing
Tajpur (Halai O.P.) P.S. Case No. 37 of 2005 was registered for
offences under Sections 148/307/379 of the IPC on 11.02.2005
at about 13:00 hours against the aforesaid appellant and four
others. Subsequently, on account of the death of the informant,
Section 302 of the IPC was added, vide order dated 12.02.2005
by the learned Trial Court. After investigation and finding the
case to be true qua the appellant and others, the police had
Patna High Court CR. APP (DB) No.700 of 2016 dt.12.02.2025
submitted charge sheet on 10.05.2005 under Sections 148/302/
379/34 of the IPC. The learned Trial Court had taken cognizance
of the offences under Sections 147/148/302 and 379/34 of the
IPC vide order dated 20.05.2005. Thereafter, the case was
committed to the Court of Sessions and was numbered as
Sessions Trial No. 684 of 2005. After taking into consideration
the charge sheet and the materials collected during investigation,
the learned Trial Judge framed charges under Sections 302/34,
379 and 148 of the IPC against the appellant to which he
pleaded not guilty and claimed to be tried.
4. During the course of trial, eight prosecution witnesses
were examined i.e. P.W.1 Prabhat Ranjan (son of the deceased-
informant), P.W.2 Asharfi Sada, P.W.3 Ram Kumar Singh, P.W.4
Himanshu Shekhar (nephew of the deceased-informant), P.W.5
Sanjay Kumar Sharma (son of the deceased-informant), P.W.6
Dr. Purushottam Kumar Singh (Doctor who had conducted
autopsy of the deceased), P.W.7 Bhushan Saini and P.W.8,
Subodh Kumar Singh (Investigating Officer).
5. Shri Ajay Kumar Thakur, the learned counsel for the
appellant has submitted that the person who has scribed the
fardbeyan has not been examined and the fardbeyan has also not
been proved, hence it is submitted that no fardbeyan of the
Patna High Court CR. APP (DB) No.700 of 2016 dt.12.02.2025
deceased-informant was ever recorded. Reference in this
connection has been made to a judgment rendered by the Hon'ble
Apex Court in the case of Kans Raj vs. the State of Punjab &
Ors., reported in (2000) 5 SCC 207, to submit that in order to
make the statement of the deceased a substantive evidence the
person or the agency relying upon it is under a legal obligation to
prove the making of such statement as a fact, thus if it is in
writing, the scribe must be produced in the Court and if it is
verbal, it should be proved by examining the person who had
heard the deceased making the statement. In the present case, the
scribe who has recorded the statement of the deceased in his
writing has not been examined, hence the statement of the
deceased-informant cannot be stated to be a substantive piece of
evidence, thus, cannot be relied upon. It is also submitted that
treating doctors have not been examined, causing gross prejudice
to the appellant. It is next submitted that the prosecution witnesses
have consistently deposed that the deceased-informant was
becoming conscious and unconscious intermittently, hence under
such circumstances, the deceased-informant who was critical
could not have given a detailed statement as has been recorded by
way of the aforesaid fardbeyan on 09.02.2005 and moreover, there
is no evidence on record to show that the deceased-informant was
Patna High Court CR. APP (DB) No.700 of 2016 dt.12.02.2025
in a fit state of mind to give statement.
6. The learned counsel for the appellant has further
submitted that all the independent witnesses have been withheld
by the prosecution, whose statements were recorded by the
police under Section 161 of the CrPC. It is also contended that
the present case will not fall within the ambit of Section 302 of
the IPC, inasmuch as though the accused persons were armed
with firearm and khanti, however, neither firearm injury nor
injury caused by khanti has been found on the body of the
deceased and almost all the injuries except one are on non-vital
parts of the body as also most of the injuries are laceration,
bruises and abrasion, thus the appellant did not have any
intention to kill the deceased nor he had knowledge that by
assaulting the deceased-informant in the manner he has done, it
would have resulted in death of the deceased. It is next
contended that though the accused were only five in number,
however, it is apparent from the evidence led in the present case
that there were 20-30 persons who had arrived at the place of
occurrence, nonetheless, no attempt was made to capture the
appellant and others. In fact, no incriminating articles/materials
have been found from the place of occurrence and the evidence
of the witnesses is full of contradictions, hence not fit to be
Patna High Court CR. APP (DB) No.700 of 2016 dt.12.02.2025
relied upon. It is stated that the present case would also not fall
within the ambit of Section 304 Part II of the IPC.
7. The learned counsel for the appellant has referred to
various judgments rendered by the Hon'ble Apex Court, on the
issue of admissibility of a dying declaration, which are being
enumerated herein below:-
(i) Judgment rendered in the case of Manjunath &
Others vs. State of Karnataka, reported in 2023 SCC
OnLine 1421.
(ii) Judgment rendered in the case of Paramjit Singh vs.
State of Punjab, reported in (1997) 4 SCC 156.
(iii) Judgment rendered in the case of Uttam vs. State of
Maharashtra, reported in (2022) 8 SCC 576. In the said
judgment, reference has been made to a judgment
rendered in the case Khushal Rao vs. State of Bombay,
reported in AIR 1958 SC 22, wherein the principles
governing circumstances where courts can accept a dying
declaration without corroboration, have been dealt with
extensively, which are enumerated herein below:-
"(1) that it cannot be laid down as an absolute rule
of law that a dying declaration cannot form the
sole basis of conviction unless it is corroborated;
(2) that each case must be determined on its own
Patna High Court CR. APP (DB) No.700 of 2016 dt.12.02.2025
facts keeping in view the circumstances in which
the dying declaration was made;
(3) that it cannot be laid down as a general
proposition that a dying declaration is a weaker
kind of evidence than other pieces of evidence;
(4) that a dying declaration stands on the same
footing as another piece of evidence and has to be
judged in the light of surrounding circumstances
and with reference to the principles governing the
weighing of evidence;
(5) that a dying declaration which has been
recorded by a competent Magistrate in the proper
manner, that is to say, in the form of questions and
answers, and, as far as practicable, in the words of
the maker of the declaration, stands on a much
higher footing than a dying declaration which
depends upon oral testimony which may suffer
from all the infirmities of human memory and
human character, and
(6) that in order to test the reliability of a dying
declaration, the court has to keep in view, the
circumstances like the opportunity of the dying
man for observation, for example, whether there
was sufficient light if the crime was committed at
night; whether the capacity of the man to
remember the facts stated, had not been impaired
at the time he was making the statement, by
circumstances beyond his control; that the
statement has been consistent throughout if he had
Patna High Court CR. APP (DB) No.700 of 2016 dt.12.02.2025
several opportunities of making a dying
declaration apart from the official record of it; and
that the statement had been made at the earliest
opportunity and was not the result of tutoring by
interested parties."
(iv) Judgment rendered in the case of Govind Narain vs.
State of Rajasthan, reported in 1993 Supp (3) SCC 343.
(v) Judgment rendered in the case of Sudhakar vs. State
of Maharashtra, reported in (2000) 6 SCC 671.
8. The learned counsel for the appellant has next referred to
a judgment rendered by the Hon'ble Apex Court in the case of
Deny Bora vs. State of Assam, reported in (2014) 14 SCC 42 to
submit that the Hon'ble Apex Court has held in the said
judgment that non-examination of material witnesses and them
being withheld by the prosecution would oblige the Court to
draw an adverse inference against the prosecution by holding
that if such witness would have been examined, it would not
have supported the prosecution case. In this connection, yet
another judgment rendered in the case of Ishwar Singh vs. State
of UP, reported in, (1976) 4 SCC 355, has been relied upon. The
learned counsel for the appellant has also relied upon a
judgment rendered by the Hon'ble Apex Court in the case of
Mohan Lal vs. State of Rajasthan, reported in (1999) 9 SCC
Patna High Court CR. APP (DB) No.700 of 2016 dt.12.02.2025
209, to contend that it has been held therein that suppression by
the prosecution of the earliest version is also a material
infirmity. Lastly, the learned counsel for the appellant has relied
upon a judgment rendered in the case of State of Madhya
Pradesh vs. Ramjan Khan & Ors., reported in 2024 SCC
OnLine SC 3070, to contend that an FIR is not an encyclopedia
disclosing all facts and details relating to the entire prosecution
case, which is never treated as a substantive piece of evidence
and the same can only be used for corroborating or contradicting
its maker when he appears in court as a witness.
9. Per contra, the learned counsel for the informant, Mr.
Suraj Narayan Yadav, has submitted that cross-examination has
not been conducted by the defence on the issue of recording of
the fardbeyan. He has also submitted that P.W.5 Sanjay Kumar
Sharma has stated in his evidence that he had taken his father
for treatment to the Sadar Hospital Samatipur where his
statement was recorded by the police and he had put his
signature on the fardbeyan of his father alongwith P.W.3 Ram
Kumar Singh, thus it is submitted that P.W.5 has proved the
fardbeyan, hence the same can be relied upon for the purposes
of upholding the conviction of the appellant. It is next
contended that P.W.8, i.e. the Investigating Officer of the present
Patna High Court CR. APP (DB) No.700 of 2016 dt.12.02.2025
case has stated in his evidence that he had forwarded the
fardbeyan of the deceased-informant by his forwarding note,
which he has identified to be in his writing as also bears his
signature and the same has been marked as Ext.1/3, thus the
fardbeyan has definitely stood proved.
10. At this juncture, the learned counsel for the informant has
referred to Section 33 of the Indian Evidence Act, 1872
(hereinafter referred to as "the Act, 1872") to submit that the
evidence given by a witness in a judicial proceeding or before any
person authorised by law to take it, is relevant for the purpose of
proving, in a subsequent judicial proceeding, or in a later stage of
the same judicial proceeding, the truth of the facts which it states,
when the witness is dead or cannot be found, hence the fardbeyan
of the deceased-informant can very well be said to be a relevant
piece of evidence. It is contended that the statement of deceased is
a dying declaration by virtue of Section 32(1) of the Act, 1872. In
this connection, reliance has been placed on a judgment rendered
by the Hon'ble Apex Court in the case of Sri Bhagwan vs. State
of U.P., reported in (2013) 12 SCC 137 to contend that in the said
case it has been held by the Hon'ble Apex Court that the statement
of the victim/deceased made before the witnesses immediately
after the incident assumes the character of dying declaration
Patna High Court CR. APP (DB) No.700 of 2016 dt.12.02.2025
falling within the four corners of Section 32(1) of the Act, 1872.
After death of the victim and then whatsoever credence that would
apply to a declaration governed by Section 32(1) of the Act, 1872
should automatically be deemed to apply in all force to such a
statement even though it was once recorded under Section 161
CrPC. It is further submitted that the injury report would show that
fatal blow, relatable to Injury No.15 was inflicted by Nand Kishore
Rai and Arjun Rai (Appellant), hence the appellant is definitely
guilty of offence under Section 302 of the IPC. In this connection,
reference has been made to a judgment rendered by the Hon'ble
Apex Court in the case of Ramji Singh vs. State of Bihar,
reported in (2001) 9 SCC 528 wherein it has been held that
common intention can be gathered from the circumstances and the
manner in which the assault is carried out.
11. The learned Additional Public Prosecutor for the State, Mr.
Ajay Mishra, has submitted that non-examination of the scribe of
the fardbeyan will in no case vitiate the dying declaration. It is
further stated that the credibility of the evidence led by the
prosecution has not been impeached by the defence and in fact, the
testimony of the witnesses is sufficient to uphold the conviction of
the appellant. He has referred to evidence of P.W.4 Himanshu
Shekhar, to submit that the evidence has not been contradicted by
Patna High Court CR. APP (DB) No.700 of 2016 dt.12.02.2025
the Investigating Officer (P.W.8), hence his evidence is enough to
uphold the conviction of the appellant. The learned Additional
Public Prosecutor for the State has next referred to the evidence of
P.W.6 i.e. the doctor Purushottam Kumar to submit that he has
stated in conclusion that the injuries found on the body of the
deceased-informant were sufficient to cause his death. The learned
Additional Public Prosecutor for the State has relied upon a
judgment rendered by the Hon'ble Apex Court, in the case of
Balbir Singh vs. State of Punjab, reported in (2006) 12 SCC 283,
to contend that it has been held therein that non-recording of dying
declaration of the deceased by the Magistrate cannot itself be a
ground to reject the whole prosecution case as also law does not
provide that a dying declaration should be made in any prescribed
manner or in the form of questions and answers, however, dying
declaration should be voluntary and not tutored, as also its
admissibility as evidence is statutorily recognized in terms of
Section 32 of the Act, 1872. In this connection, reference has also
been made to a judgment rendered by the Hon'ble Apex Court, in
the case of Jai Karan vs. State of Delhi (NCT), reported in (1999)
8 SCC 161, paragraph No.10 whereof is reproduced herein
below:-
"10. A dying declaration is admissible in evidence on the
principle of necessity and can form the basis for
Patna High Court CR. APP (DB) No.700 of 2016 dt.12.02.2025
conviction if it is found to be reliable. While it is in the
nature of an exception to the general rule forbidding
hearsay evidence, it is admitted on the premiss that
ordinarily a dying person will not falsely implicate an
innocent person in the commission of a serious crime. It
is this premiss which is considered strong enough to set
off the need that the maker of the statement should state
so on oath and be cross-examined by the person who is
sought to be implicated. In order that a dying declaration
may form the sole basis for conviction without the need
for independent corroboration it must be shown that the
person making it had the opportunity of identifying the
person implicated and is thoroughly reliable and free
from blemish. If, in the facts and circumstances of the
case, it is found that the maker of the statement was in a
fit state of mind and had voluntarily made the statement
on the basis of personal knowledge without being
influenced by others and the court on a strict scrutiny
finds it to be reliable, there is no rule of law or even of
prudence that such a reliable piece of evidence cannot be
acted upon unless it is corroborated. A dying declaration
is an independent piece of evidence like any other piece
of evidence - neither extra strong nor weak - and can be
acted upon without corroboration if it is found to be
otherwise true and reliable."
12. The learned APP for the State has next relied upon a
judgment rendered by the Hon'ble Apex Court, in the case of
Gian Chand & Ors. vs. the State of Haryana, reported in
(2013) 14 SCC 420, to submit that the Hon'ble Apex Court has
Patna High Court CR. APP (DB) No.700 of 2016 dt.12.02.2025
held therein that in absence of question being put to the witness
in cross-examination to a particular fact/circumstance, the
unchallenged part of the evidence of such a witness is to be
relied upon. In this regard, reference has also been made to a
judgment rendered by the Hon'ble Apex Court in the case of
Laxmibai vs. Bhagwantbuva, reported in (2013) 4 SCC 97,
paragraph No.40 whereof is reproduced herein below:-
"40. Furthermore, there cannot be any dispute with
respect to the settled legal proposition, that if a party
wishes to raise any doubt as regards the correctness of
the statement of a witness, the said witness must be given
an opportunity to explain his statement by drawing his
attention to that part of it, which has been objected to by
the other party, as being untrue. Without this, it is not
possible to impeach his credibility. Such a law has been
advanced in view of the statutory provisions enshrined in
Section 138 of the Evidence Act, 1872, which enable the
opposite party to cross-examine a witness as regards
information tendered in evidence by him during his initial
examination-in-chief, and the scope of this provision
stands enlarged by Section 146 of the Evidence Act,
which permits a witness to be questioned, inter alia, in
order to test his veracity. Thereafter, the unchallenged
part of his evidence is to be relied upon, for the reason
that it is impossible for the witness to explain or
elaborate upon any doubts as regards the same, in the
absence of questions put to him with respect to the
Patna High Court CR. APP (DB) No.700 of 2016 dt.12.02.2025
circumstances which indicate that the version of events
provided by him is not fit to be believed, and the witness
himself, is unworthy of credit. Thus, if a party intends to
impeach a witness, he must provide adequate opportunity
to the witness in the witness box, to give a full and proper
explanation. The same is essential to ensure fair play and
fairness in dealing with witnesses."
Thus, it is submitted that there being no contradictions in
the evidence of the prosecution witnesses, who are consistent in
their testimony, no interference is required in the judgment of
conviction and the order of sentence passed by the learned Trial
Judge, hence the present appeal is fit to be dismissed.
13. Besides hearing the learned counsel for the parties, we
have minutely perused both the evidence i.e. oral and
documentary. Before proceeding further, it is necessary to
cursorily discuss the evidence.
14. P.W.1 Prabhat Ranjan, who is the son of the deceased-
informant, has stated in his deposition that the occurrence dates
back to 09th February 2005 at about 09:15 a.m. in the morning
when he was planting vegetables at a distance of 200 yards on
the west. Having heard hulla (alarm), P.W.1 had gone to the
place of occurrence and he saw that Arjun Rai (Appellant),
Subodh, Nand Kishore, Sanjeet and Ranjeet were assaulting his
father. The place of occurrence is situated near Subadhi Pokhar
Patna High Court CR. APP (DB) No.700 of 2016 dt.12.02.2025
(Pond) towards eastern side near Keso Narayanpur Road. Arjun
Rai (Appellant) was assaulting father of P.W.1 by khanti,
Subodh was also assaulting his father by khanti, and Nand
Kishore Rai was assaulting with the butt of the pistol and
pressing the neck of his father. Ramjee Rai was exhorting to kill
the father of P.W.1. P.W.1 has also stated that on that day, his
father was going to the civil court to attend the hearing of the
title suit. P.W. 1 has next stated that thereafter, Arjun Rai
(Appellant) had snatched the BSA cycle of his father and
documents of the title suit and ran away and in the meantime,
Nand Kishore Rai had snatched a sum of Rs.1500/- from his
father. P.W.1 has also stated that his father had become injured
and his right hand as also leg had broken into 3-4 pieces,
whereafter they had hired a vehicle and taken his father to
Samastipur Hospital where treatment was done. Thereafter,
father of P.W.1 was referred to Patna Hospital and then they had
gone to Dr. Rewati Raman Jha at Samastipur for enquiring as to
whether the patient can be taken to Patna safely and then the
police had arrived and recorded the statement of his father,
which was read over to him and over the same he had put his
impression as he was not able to sign on account of his hand
being broken, whereupon Sanjay Kumar Sharma (P.W.5) and
Patna High Court CR. APP (DB) No.700 of 2016 dt.12.02.2025
Ram Kumar Singh (P.W.3) had put their signature over the
statement of the father of P.W.1 as witness, which P.W.1 has
recognized and the same has been marked as Ext. 1/1. P.W.1 has
next stated that in the night, at about 9:00 p.m., his father had
died in the clinic of Dr. Rewati Raman Jha. He has also stated
that a title suit was going on with Arjun Rai (Appellant) and
others, hence they have committed the said occurrence. P.W.1
had recognized all the accused persons, who were standing in
the dock. P.W. 1 has stated in his cross-examination that he had
stated before the police in the police station that when he
reached the place of occurrence, the accused persons were
assaulting his father. P.W.1 has further stated in his cross-
examination that when he had reached at the place of
occurrence, apart from the accused persons, several other
persons were present there and they had stood there for 10
minutes. P.W. 1 has also stated that on the date of occurrence, at
about 11 a.m., all of them had reached hospital and his father
had stayed at the Sadar Hospital upto 02:30 p.m. where the
doctor had examined his father and treated him.
15. P.W.2 Asharfi Sada, who is an independent witness, has
stated in his deposition that the occurrence dates back to one
and a half years at about 8-9 a.m. in the morning. After he had
Patna High Court CR. APP (DB) No.700 of 2016 dt.12.02.2025
heard hulla (alarm), he had gone to the place of occurrence and
had seen that Arjun Rai (Appellant), Subodh and their brothers
were assaulting Shiveshwar Master Ji by iron rod whereupon he
had become injured leading to his subsequent death. P.W.2 has
further stated that co-villagers and the son of the said
Shiveshwar Sharma had then taken him on a vehicle to
Samastipur for treatment where he died. P.W.2 had recognized
all the accused persons standing in the dock. P.W.2 has stated in
his cross-examination that his statement was recorded by the
police wherein he had stated before the police that Subodh and
Arjun (Appellant) were assaulting Master Ji by iron rod and
sota (whip). P.W.2 has further stated that upon alarm being
raised, co-villagers along with the sons of Master Ji had arrived
at the place of occurrence and found him to be unconscious as
also he was not speaking but was only wriggling in pain and in
the said condition he was lifted into a vehicle and taken to
hospital in an unconscious state where he died.
16. P.W.3 Ram Kumar Singh has stated in his deposition that
the occurrence dates back to 09.02.2005 at about 9-9.30 a.m. in
the morning when he was going to the in-law's place of his child
on a motorcycle and had reached near the pond, whereupon he
saw that some people had assembled there armed with lahti,
Patna High Court CR. APP (DB) No.700 of 2016 dt.12.02.2025
sota and khanti and were assaulting one person. P.W.3 had then
stopped his motorcycle there and raised alarm, whereafter some
people had arrived along with the son of Shiveshwar Sharma,
who was being assaulted and had become badly injured
whereafter, he was taken to the hospital and in the meantime, he
had gone to in-law's place of his child. P.W.3 has also stated that
subsequently, he heard that the accused persons had ran away
with cycle and documents. P.W.3 has further stated that Arjun
Rai (Appellant), Subodh Rai and Sanjeet Roy were assaulting
the deceased-informant and while Subodh was assaulting by
khanti, Arjun Rai (Appellant) was assaulting by rod and others
were assaulting by lathi. P.W.3 has stated in his cross-
examination that he had given his statement before the police at
the police station and had stated that Subodh was holding khanti
in his hand while Arjun Rai was holding rod and others were
holding lathi in their hands. P.W.3 has stated that he had reached
the in-law's place of his child at 10:30 a.m in the morning but
they were not available there, hence he had returned to his house
after half an hour and after eating food, he had gone to the
hospital at around 01:30 p.m. in the afternoon and he saw that
the deceased was sometime regaining consciousness and
sometime he was becoming unconscious and he stayed at the
Patna High Court CR. APP (DB) No.700 of 2016 dt.12.02.2025
hospital till 02:30 p.m. when the statement was recorded by the
police and the deceased was referred for further treatment to
Patna. As the health condition of the deceased was deteriorating,
he was taken to the clinic of Dr. R.R. Jha where he died during
the course of treatment. P.W.3 has stated in his cross-
examination that when he reached at the place of occurrence,
Shiveshwar Sharma had fallen down and then he had raised
alarm, whereupon people including the family members of the
deceased-informant had come and then all the people including
him had taken him to hospital in a vehicle. P.W.3 has next stated
that blood was oozing out from hands and legs of the deceased,
who had been badly assaulted.
17. P.W.4 Himanshu Shekhar, who is the nephew of the
deceased-informant, has stated in his deposition that the
occurrence dates back to 09.02.2005 at about 9 a.m. in the
morning when he was cutting crops in his field and upon hearing
hulla (alarm), he had gone to the place of occurrence and then he
saw that Arjun Rai (Appellant), Subodh Rai, Nandbali, Ranjeet
and Sanjeet Roy were assaulting Shiveshwar Sharma. Nandbali
was armed with pistol, Arjun (Appellant) and Subodh were armed
with rod and Ranjeet was armed with lahti. They were assaulting
the deceased repeatedly. Thereafter, he and others who had arrived
Patna High Court CR. APP (DB) No.700 of 2016 dt.12.02.2025
there had gone near the deceased, however, in the meantime, the
accused persons had ran away with the documents and the cycle of
the deceased-informant and the people present there had lifted the
deceased-informant and taken him for treatment to Samastipur
where he was referred to Patna but since his condition was
deteriorating, they had taken him to the clinic of Dr. R.R. Jha for
treatment and during the course of treatment he had died at about
9-9:30 p.m. in the night. P.W.4 had recognized the accused persons
standing in the dock. P.W.4 has stated that Subodh, Nandbali,
Banshidhar Thakur and Ranjeet Roy had snatched the medical
prescription from him and Subodh had beaten him on his face by
the butt of pistol and was asking him not to testify. P.W.4 has
stated in his cross-examination that his statement was recorded by
the police and it is not a fact that he had not told the police that
Nandbali armed with pistol, Arjun and Subodh armed with rod and
Ranjeet armed with lathi were assaulting the deceased repeatedly
and they had ran away with the cycle and documents of the
deceased. P.W.4 has stated that he was cutting crops in his field, ½
KM. east of his house and when he reached at the place of
occurrence about 10 people were present there including Ram
Kumar, Pandav, Suryadev Thakur, Arvind Rai, Devendra Rai,
Vidyasagar, Ram Naresh and Bhona Rai. He has next stated that
Patna High Court CR. APP (DB) No.700 of 2016 dt.12.02.2025
injuries were present all over the body of his uncle, including his
hand from where blood was falling down and then they had taken
the deceased to the hospital. At the hospital, the doctor had
referred the deceased-informant to Patna, after seeing that his
condition was serious but they had taken the deceased-informant
to Dr. R.R. Jha's clinic where the condition of the deceased started
deteriorating and he died during the course of treatment.
18. P.W.5 Sanjay Kumar Sharma, who is the son of the
deceased-informant has stated in his deposition that the
occurrence dates back to 09.02.2005 at about 9:30 a.m. in the
morning when his father was going to the civil court and he was
following him from behind. The accused persons had
surrounded his father towards the eastern side of Suwadhi
Pokhar (pond) and he saw that Arjun Rai (Appellant) and
Subodh armed with khanti, Nand Kishore armed with pistol and
Ranjeet and Sanjeet armed with lahti were repeatedly assaulting
his father while Ramjee Rai was standing nearby and was
exhorting the other accused persons to kill the deceased-
informant whereupon P.W.5 had raised alarm and then Ram
Kumar, Kamta, Ramanand etc. had arrived there and then the
accused persons had ran away. P.W.5 has also stated that Nand
Kishore Rai was sitting on the chest of his father and was
Patna High Court CR. APP (DB) No.700 of 2016 dt.12.02.2025
pressing his neck whereafter, his father became unconscious.
Arjun Rai had then taken away the BSA cycle of his father as
also the documents pertaining to title suit and pension papers.
Nand Kishore had taken away a sum of Rs.1500/- from the
pocket of his father. P.W.5 has further stated that immediately
thereafter, they had taken the deceased-informant on a Marshal
vehicle to Sadar Hospital where treatment was done, however,
since the condition was critical, the doctor had referred his
father to PMCH, Patna and in the meantime the police had
arrived and recorded the statement of his father which was read
over to him and then he had put his impression since he could
not sign on account of his hand being broken whereupon P.W.5
and Ram Kumar had put their signature which he recognizes
and the same has been marked as Ext.1/2. P.W.5 has further
stated that since the condition of the deceased-informant was
critical, they had gone for taking opinion of Dr. R.R. Jha and
then taken the deceased-informant there, where in the night he
had died. P.W.5 had recognized all the accused persons standing
in the dock. P.W.5 has stated in his cross-examination that his
statement was recorded by the police officer where he had stated
that Arjun (Appellant) and Subodh armed with khanti, Nand
Kishore armed with pistol, Ranjeet and Sanjeet armed with lathi
Patna High Court CR. APP (DB) No.700 of 2016 dt.12.02.2025
were assaulting his father and Ramjee was standing nearby, who
was giving order to kill the deceased and then Nand Kishore had
sat on the chest of the deceased and had pressed his neck. P.W.5
has stated that when he had reached at the place of occurrence,
upon alarm being raised, apart from family members, ten co-
villagers had also arrived there. P.W.5 has further stated in his
cross-examination that when he reached at the place of
occurrence, he found injuries on the head, leg and chest of his
father and blood was oozing out from hand and legs as also his
father was wriggling in pain and had fallen down on the road,
whereafter marshal vehicle was called and the deceased-
informant was taken to the hospital. He has further stated that
sometimes his father used to regain consciousness and
sometimes he used to become unconscious, nonetheless during
the course of treatment, his statement was recorded by the
police and then he was referred, whereafter they had reached the
clinic of Dr. R.R. Jha at about 3:00 p.m. in the evening where
also his father used to sometime regain consciousness and then
used to become unconscious, however his father died at about
10 p.m. in the night. He has stated that a case and a counter case
was going on in between the parties.
19. P.W.6 Dr. Purshottam Kumar Singh has stated in his
Patna High Court CR. APP (DB) No.700 of 2016 dt.12.02.2025
deposition that he was posted at Sadar Hospital, Samastipur on
10.02.2005, had conducted autopsy/postmortem on the dead
body of Shiveshwar Prasad Sharma and had found the following
ante-mortem injuries:-
"(i) Lacerated wound over dorsum of right hand, size
about ½ "x ½ "x muscle deep.
(ii) Bones of right forearm found clinically fractured.
(iii) Three stitched wounds over back side of right lower
part of arm each about 1" in length.
(iv) Lacerated wound over dorsum of right thumb, size
about 1" x ¼ " x muscle deep.
(v) Bruise over lower third of right forearm dorsally, size
about 2"x ½".
(vi) Lacerated wound over distal part of left index finger
dorsally, size about ½" x ¼ " x muscle deep.
(vii) Stitched wound below left knee joint on front 1" in
length.
(viii) Abrasion over left heel, size 1"x ¼ ".
(ix) Stitched wound over ventral aspect of right middle
toe 1" in length and stitched wound over right thigh
laterally, size about 5 ½" in length.
Patna High Court CR. APP (DB) No.700 of 2016 dt.12.02.2025
(x) Bruise over left buttock, size 1"x 1".
(xi) Bruise over left arm 1"x ¼ " and bruise over left wrist
joint dorsally, size ½ "x ¼ " and over lateral aspect of left
elbow joint, size ½ "x ½ ".
(xii) Bruise over front of lower left thigh 3 in number
each about ½ x ½".
(xiii) Stitched wound over space between left little toe
and adjacent toe, size about ½" in length.
(xiv) Multiple bruises over front of right leg, left little toe
& right knee joint & right and right lower thigh.
(xv) Multiple bruises over left side chest (front) ½ " x ½ "
to ½" x ¼".
20. The findings of P.W.6 on dissection are as follows:-
On dissection of chest:-
(i) Left sided 3rd, 4th, 5th, 6th ribs were found fractured on
anterior portion.
(ii) Left side pleura and lung found lacerated.
(iii) Left pleural cavity found full of blood.
On dissection of limbs:-
Both bones of right forearm found fractured and
Patna High Court CR. APP (DB) No.700 of 2016 dt.12.02.2025
hematoma present all around fracture.
P.W.6 has opined about the weapon used as follows:-
Wound Nos. 1, 2, 4, 5, 6, 8, 10, 11, 12, 14, 15, caused by
hard blunt substance and rest wounds are stitched already
so weapons could not be determined.
P.W.6 has found time elapsed since death to be
between 6 to 24 hours.
P.W.6 has finally opined as follows:-
The cause of death was shock and hemorrhage produced
by above mentioned injuries.
21. P.W.6 has proved the postmortem report which has been
prepared in his pen and signature and the same has been marked as
Ext.2. Time of death has been stated to be in between 6-24 hours.
P.W.6 has stated in his cross-examination that rigor mortis starts
spreading after 3 hours of death. In between 6-24 hours it spreads
in four limbs and it may be 18-24 hours. Rigor mortis was present
in four limbs and almost all the injuries except injury no.15 have
been found to be on non-vital part of the body. P.W.6 has also
stated that such injuries are not possible by fall.
22. P.W.7 Bhushan Saini, who is a formal witness, has proved
the case-diary, which has been marked as Ext.3.
Patna High Court CR. APP (DB) No.700 of 2016 dt.12.02.2025
23. P.W.8 Subodh Kumar Singh, who is the investigating
officer of this case, has stated in his deposition that on
10.02.2005, he was In-charge of Halai O.P. and had received
fardbeyan of Shiveshwar Sharma from Town Police Station,
Samastipur, which was recorded by the Sub-Inspector, R.D.
Singh of Town Police Station at Sadar Hospital, Samastipur and
after receiving fardbeyan, he had forwarded the fardbeyan to
Tajpur Police Station for registration of FIR. The said
forwarding note, which is in the writing of P.W.8, has been
proved by him and he has also recognized his signature, which
has been exhibited as Ext.1/3. On the basis of the farbdeyan,
Tajpur P.S. Case No.37 of 2005 dated 11.02.2005 was registered
under Sections 148, 307, 379 of the IPC. He has also stated that
during the course of treatment, the informant, namely,
Shiveshwar Prasad Sharma died on 09.02.2005 in the night and
thereafter, he had received the inquest report of the deceased on
10.02.2005, carbon copy whereof has been proved by him,
which was prepared by the then Sub-Inspector, R.D. Singh and
the same is in the writing of Sri R.D. Singh and bears his
signature which P.W.8 has identified and the same has been
marked as Ext.4. P.W.4 has further stated that after taking up the
investigation, he had gone to the house of the deceased at Kesho
Patna High Court CR. APP (DB) No.700 of 2016 dt.12.02.2025
Narayanpur and recorded the statement of witnesses, namely,
Asharfi Sada, Ashok Kumar, Rath Dev Thakur, Sita Devi, Ram
Kumar Singh, Raj Kumari Devi and Rajesh Kumar and had also
inspected the place of occurrence. He has stated that the place of
occurrence is situated at 100 yards east of Keshav Narayanpur
near Subadhi Pokhar (pond). On 11.2.2005, P.W.8 had arrested
the accused, namely, Sanjeet Roy and had also recorded the
statement of witnesses namely, Pandav Singh, Maheshwar
Prasad Sharma, Sanjay Kumar Sharma, Prabhat Ranjan and
Himansu Shekhar. P.W.8 has stated that he had received the
postmortem report from the Sadar Hospital, Samastipur and
thereafter, on the basis of statement of the witnesses, inspection
of the place of occurrence and the postmortem report, he had
submitted charge sheet against Arjun Rai (Appellant) and
Sanjeet Roy while keeping the investigation going on qua the
other accused persons. P.W.8 is stated to have not recorded the
statement of the deceased. He has next submitted that on
10.02.2005, after receiving the fardbeyan and the inquest report,
he had gone to the place of occurrence and tried to record the
statement of the sons of the deceased and his family members,
however their mental condition was not found to be good, hence
they had not given their statement.
Patna High Court CR. APP (DB) No.700 of 2016 dt.12.02.2025
24. P.W.8 has stated in his cross-examination that on
24.02.2005, he had recorded the statement of Prabhat Ranjan
(P.W.1), who has not stated before him that Ramjee Rai had
exhorted the other accused persons to kill the informant
whereupon Arjun (Appellant) and Subodh had assaulted by the
butt of pistol and Nand Kishore was sitting on the chest of the
informant and pressing his neck. P.W.8 has also stated that
Prabhat Ranjan (P.W.1) has not stated that Arjun Rai (Appellant)
had taken away the cycle of the deceased and Nand Kishore had
taken out a sum of Rs.1500/- from the pocket of the deceased.
P.W.8 has next stated that Prabhat Ranjan has stated before him
that at the time of occurrence, he was planting vegetables near
his house along with his brother. P.W.8 has also stated that
witness Asharfi Sada (P.W.2) had not stated before him that
Arjun and Subodh were assaulting by sota (whip) and rod.
P.W.8 has also stated in his cross-examination that witness Ram
Kumar Singh (P.W.3) had not stated before him that Subodh was
armed with khanti and Arjun (Appellant) was armed with rod.
P.W.8 has next stated that witness Himanshu Shekhar (P.W.4)
has not stated before him that Nandbali armed with pistol, Arjun
(Appellant) and Subodh armed with rod and Ranjeet armed with
lathi were assaulting the deceased repeatedly. Lastly, P.W.8 has
Patna High Court CR. APP (DB) No.700 of 2016 dt.12.02.2025
stated in his cross-examination that witness Sanjay Kumar
Sharma (P.W.5) has not stated before him that Ramjee was
standing nearby and was ordering the other accused persons to
kill the deceased and that Nand Kishore was sitting on the chest
of the deceased and pressing his neck while Ranjeet, Sanjeet
armed with lathi and Arjun and Subodh armed with khanti were
assaulting the deceased.
25. After closing the prosecution evidence, the Ld Trial Court
recorded the statement of the appellant on 20.01.2014 under
Section 313 of the CrPC for enabling him to personally explain
the circumstances appearing in the evidence against him,
however in his statement, he claimed himself to be innocent.
26. The trial Court, upon appreciation, analysis and scrutiny
of the evidence adduced at the trial has found the aforesaid
appellant guilty of the offences and has sentenced him to
imprisonment and fine, as noted above, by its impugned
judgment and order.
27. A bare perusal of the evidence of the prosecution reveals
that on 09.02.2005 at 9:00 a.m. in the morning, the appellant
herein as also Nand Kishore Rai, Subodh Rai, Ranjeet Rai and
Sanjeet Rai had surrounded the deceased-informant, whereafter
Arjun Rai (Appellant) and Subodh Rai armed with khanti had
Patna High Court CR. APP (DB) No.700 of 2016 dt.12.02.2025
assaulted the deceased-informant, leading to fracture of his right
hand and right elbow and in the meantime Nand Kishore Rai
had sat on the chest of the deceased-informant and assaulted on
his chest by the butt of his pistol as also pressed his neck
whereupon, Sanjeet Roy and Ranjeet Rai had beaten the
deceased-informant with lathi, resulting in the deceased-
informant being injured badly. Thereafter, the deceased-
informant was taken to Sadar Hospital, Samastipur where his
condition was found to be serious by the treating doctor, hence
he had referred him for further treatment to Patna. At this
juncture, it would be relevant to mention that P.W.1 Prabhat
Ranjan, P.W.2 Asharfi Sada, P.W.3 Ram Kumar Singh, P.W.4
Himanshu Shekhar, and P.W.5 Sanjay Kumar Sharma are eye
witnesses to the aforesaid occurrence and they have deposed
consistently with regard to the overtact engaged in by the
appellant herein and four others qua the deceased-informant
which has also stood the test of cross-examination. It is a well
settled law that minor divergences, if any in the prosecution's
evidence being insignificant in nature, cannot have any effect on
the case of the prosecution in case of overwhelming
incriminating evidences have been adduced at the trial to
establish the guilt of the accused persons.
Patna High Court CR. APP (DB) No.700 of 2016 dt.12.02.2025
28. The prosecution's narrative in the FIR is fully supported
by the ocular evidence adduced at the trial and the ocular
evidence is corroborated by the medical evidence, inasmuch as
the doctor has categorically stated in his evidence that the
injuries found on the person of the deceased are sufficient to
cause his death. Reference in this connection be had to a
judgment rendered by the Hon'ble Apex Court in the case of
Bhagchandra vs. State of M.P., reported in (2021) 18 SCC 274.
29. In fact, the Ld. Counsel for the appellant has also not
been able to show any material contradictions in the statement
of the witnesses inasmuch as though the statements made by the
witnesses under Section 161 Cr.P.C. were put to P.W.8 Subodh
Kumar Singh (Investigating Officer) to elicit his response,
however, a bare perusal of the evidence of P.W.8 would show
that as far as P.W.1, P.W.3 and P.W.4 are concerned, the defense
has failed to elicit any contradictions. As far as P.W.5 is
concerned, P.W.8 has stated that he had not stated before him
that Ramjee was standing nearby and ordering to kill/assault and
Nand Kishore was sitting at his chest and pressing his neck
while Ranjeet and Sanjeet were assaulting by lathi and Arjun
(Appellant) and Subodh by khanti, which is not of much
consequence in view of the consistent ocular evidence led by the
Patna High Court CR. APP (DB) No.700 of 2016 dt.12.02.2025
prosecution's witnesses. Thus, considering the ocular evidence
of the prosecution's witnesses, which have withstood the test of
cross-examination, in our opinion, minor discrepancies in their
evidence cannot affect the prosecution case as these witnesses
do not appear to be untrustworthy.
30. Now coming to the fardbeyan of the deceased-informant,
it has been argued at great length by the learned counsel for the
appellant that in order to make the statement of the deceased a
substantive piece of evidence, the person or the agency relying
upon it is under a legal obligation to prove the making of such a
statement as a fact, hence the scribe, who had written the
fardbeyan of the deceased-informant, should have been
produced in the Court, however in the present case since the
scribe has not been produced during the course of the Trial, the
fardbeyan of the deceased-informant has remained unproved. It
has also been argued by the learned counsel for the appellant
that the evidence on record would show that the deceased-
informant was becoming conscious/ unconscious from time to
time, hence the deceased-informant being critical could not have
given a detailed statement as has been recorded by way of the
aforesaid fardbeyan on 09.02.2005 and moreover, there is no
evidence on record to show that the deceased-informant was in a
Patna High Court CR. APP (DB) No.700 of 2016 dt.12.02.2025
fit state of mind to give a statement. The learned counsel for the
appellant has referred to several judgments on this issue,
however, this Court finds that the principles laid down by the
Hon'ble Apex Court, regarding admissibility of a dying
declaration is not in dispute and it is a well-settled law that there
is no prescribed manner or format of a dying declaration, non-
recording of dying declaration of the deceased by the Magistrate
cannot itself be a ground to reject the whole prosecution case,
however, dying declaration should be voluntary and not tutored,
consistent and credible and its admissibility as evidence is
statutorily recognized in terms of Section 32 of the Act, 1872.
Therefore, dying declaration can be the sole basis for conviction
if it inspires full confidence of the Court and the Court is
satisfied that the declaration is true and voluntary. In this regard,
reference be had to the following judgments rendered by the
Hon'ble Apex Court:-
(i) Jai Karan vs. State of Delhi (NCT), reported in
(1999) 8 SCC 161;
(ii) Balbir Singh vs. State of Punjab, reported in (2006)
12 SCC 283;
(iii) Panneerselvam vs. State of T.N., reported in (2008)
17 SCC 190;
Patna High Court CR. APP (DB) No.700 of 2016 dt.12.02.2025
(iv) Atbir vs. Govt. (NCT of Delhi), reported in (2010) 9
SCC 1; and
(v) Rajendra vs. State of Maharashtra, reported in 2024
SCC OnLine SC 941.
31. Now adverting back to the present case, we find that all
the witnesses have consistently stated that the deceased-
informant was regaining consciousness from time to time and
when he was taken to Sadar Hospital, Samastipur, he had
regained consciousness after treatment and then the police had
arrived there and recorded his statement which was
countersigned by P.W.3 Ram Kumar Singh and P.W.5 Sanjay
Kumar Sharma and in fact P.W.5 has also identified his
signature and the signature of P.W.3 during the course of trial,
which has been marked as Ext.1/2. Thus, it cannot be said that
the fardbeyan of the deceased-informant has not stood proved.
Another aspect of the matter is that no question has been put to
the witness in cross-examination regarding untruthfulness of the
fardbeyan and that the same is fabricated, hence the
unchallenged part of the evidence of a witness is required to be
relied upon. It is a well settled law that in absence of question
being put to the witness in cross-examination to a particular
fact/circumstance, the unchallenged part of the evidence of such
Patna High Court CR. APP (DB) No.700 of 2016 dt.12.02.2025
a witness is to be relied upon. Reference in this connection be
had to a judgment rendered by the Hon'ble Apex Court in the
case of Gian Chand & Ors. vs. the State of Haryana (supra)
and in the case of Laxmibai vs. Bhagwantbuva (supra).
32. The second part of clause (1) of Section 32 of the Act,
1872 is yet another exception to the rule that in criminal law the
evidence of a person who has not been subjected to or given an
opportunity of being cross-examined by the accused would be
valueless, for the simple reason that a person on the verge of
death is not likely to make a false statement, unless there is
strong evidence to show that the statement was secured either by
prompting or tutoring. Reference in this connection be had to
the judgment rendered by the Hon'ble Apex Court in the case of
Kans Raj vs. State of Punjab (supra) as also to a judgment
rendered by the Hon'ble Apex Court in the case of Sri
Bhagwan (supra). Thus, we are of the view that since in the
present case no conflicting circumstance has been either pointed
out or demonstrated during the course of trial so as to warrant
excluding the statement made by the deceased-informant, which
has been recorded as a fardbeyan as also bears the thumb
impression of the deceased-informant and has remained
unchallenged apart from the same having been proved by P.W.5
Patna High Court CR. APP (DB) No.700 of 2016 dt.12.02.2025
Sanjay Kumar Sharma, who had put his signature over the same
alongwith P.W.3 Ram Kumar Singh, there is no reason to doubt
the said declaration of the deceased-informant, which we find to
be not only true and voluntary but the same also stands
corroborated by the abundant legal evidence on record.
33. As far as the argument of the learned counsel for the
appellant to the effect that independent witnesses and material
witnesses have been withheld which has prejudiced the
appellant, this Court finds that it is a well settled law that mere
non-joining of an independent witness, where the evidence of
the prosecution witnesses may be found to be cogent,
convincing, creditworthy and reliable, cannot cast doubt on the
version forwarded by the prosecution if there seems to be no
reason on record to falsely implicate the appellant. Reference in
this connection be had to a judgment rendered by the Hon'ble
Apex Court in the case of Gian Chand (Supra) and the one
rendered in the case of Appabhai & Anr. vs. State of Gujarat,
reported in 1988 Supp SCC 241, paragraph No.11 whereof is
reproduced herein below:-
"11. In the light of these principles, we may now consider
the first contention urged by the learned counsel for the
appellants. The contention relates to the failure of the
prosecution to examine independent witnesses. The High
Patna High Court CR. APP (DB) No.700 of 2016 dt.12.02.2025
Court has examined this contention but did not find any
infirmity in the investigation. It is no doubt true that the
prosecution has not been able to produce any
independent witness to the incident that took place at the
bus stand. There must have been several of such
witnesses. But the prosecution case cannot be thrown out
or doubted on that ground alone. Experience reminds us
that civilized people are generally insensitive when a
crime is committed even in their presence. They withdraw
both from the victim and the vigilante. They keep
themselves away from the court unless it is inevitable.
They think that crime like civil dispute is between two
individuals or parties and they should not involve
themselves. This kind of apathy of the general public is
indeed unfortunate, but it is there everywhere whether in
village life, towns or cities. One cannot ignore this
handicap with which the investigating agency has to
discharge its duties. The court, therefore, instead of
doubting the prosecution case for want of independent
witness must consider the broad spectrum of the
prosecution version and then search for the nugget of
truth with due regard to probability if any, suggested by
the accused. The court, however, must bear in mind that
witnesses to a serious crime may not react in a normal
manner. Nor do they react uniformly. The horror stricken
witnesses at a dastardly crime or an act of egregious
nature may react differently. Their course of conduct may
not be of ordinary type in the normal circumstances. The
court, therefore, cannot reject their evidence merely
because they have behaved or reacted in an unusual
Patna High Court CR. APP (DB) No.700 of 2016 dt.12.02.2025
manner. In Rana Pratap v. State of Haryana [(1983) 3
SCC 327] Chinnappa Reddy, J., speaking for this Court
succinctly set out what might be the behaviour of different
persons witnessing the same incident. The learned Judge
observed:
"Every person who witnesses a murder reacts in
his own way. Some are stunned, become speechless
and stand rooted to the spot. Some become hysteric
and start wailing. Some start shouting for help.
Others run away to keep theselves as far removed
from the spot as possible. Yet others rush to the
rescue of the victim, even going to the extent of
counter-attacking the assailants. Every one reacts
in his own special way. There is no set rule of
natural reaction. To discard the evidence of a
witness on the ground that he did not react in any
particular manner is to appreciate evidence in a
wholly unrealistic and unimaginative way."
In the present case, we find that the evidences of
prosecution witness are cogent, convincing, creditworthy and
reliable apart from the fact that P.W.2 Asharfi Sada and P.W.3
Ram Kumar Singh are independent eye witnesses, thus
examination of other independent witnesses in quantity would
not have made any difference, hence the said submission
advanced by the learned counsel for the appellant does not merit
any consideration.
34. Now coming to the last submission made by the learned
Patna High Court CR. APP (DB) No.700 of 2016 dt.12.02.2025
counsel for the appellant to the effect that the present case will
not fall within the ambit of Section 302 IPC inasmuch as though
the accused persons were armed with firearm, khanti and lathi,
however, no serious injuries have been found on the body of the
deceased and all the injuries (laceration, bruises and abrasion)
except one are on non-vital part of the body of the deceased,
hence the accused persons did not have any intention to kill the
deceased apart from the fact that he had no knowledge that by
assaulting the deceased-informant in the manner he had done
would have resulted in his death. As regards this aspect of the
matter, we have considered the evidence led by the prosecution
from which we find that all the injuries except one are on non-
vital parts of the body of the deceased and moreover, neither
grievous/piercing injury has been inflicted by khanti/lathi nor
gunshot has been fired by Nand Kishore Rai though he was
armed with pistol, thus we are of the view that it cannot be
concluded that the intention of the appellant and others was to
cause death or to cause such injury which was sufficient in the
ordinary course of nature to cause death, nonetheless the fact
remains that the appellant and others had badly assaulted the
deceased and in fact P.W.6 Dr. Purushottam Kumar has stated in
his evidence that the injuries found on the body of the deceased
Patna High Court CR. APP (DB) No.700 of 2016 dt.12.02.2025
were sufficient to cause his death, hence we find that the
appellant had engaged in overtact with the knowledge that the
same is likely to cause death. Therefore, we find that the
appellant and others had though engaged in overtact with the
knowledge that the same is likely to cause death but they did not
have any intention to cause death. We also find from the records
that though the deceased-informant was critical, having been
assaulted badly by the appellant and others and was referred by
the treating doctor at Sadar Hospital, Samastipur to PMCH,
Patna but the family members of the deceased-informant,
instead of taking him to PMCH, Patna for better treatment, had
delayed the matter whereafter, they had finally taken the
deceased-informant to the clinic of one Dr. R.R. Jha at
Samastipur itself where also apparently proper treatment was
not given leading to the death of the deceased-informant in the
night of 09.02.2005. It is a well-settled law that the death must
result as a proximate and not a remote consequence of the act of
violence. Thus, this circumstance has also weighed upon us to
come to a finding that the present case would fall under Part II
of Section 304 of the IPC. In such view of the matter, we find
that the appellant is liable to be convicted under Section 304
Part II of the IPC, thus the conviction of the appellant under
Patna High Court CR. APP (DB) No.700 of 2016 dt.12.02.2025
Section 302 of the IPC and the sentence of rigorous
imprisonment for life awarded thereunder along with fine of
Rs.50,000/- are set aside and instead the appellant is convicted
under Section 304 Part II of the IPC and sentenced to undergo
rigorous imprisonment for ten years. In this connection,
reference be had to the following judgments rendered by the
Hon'ble Apex Court:-
(i) Camilo Vaz vs. State of Goa, reported in (2000) 9 SCC 1;
(ii) Rampal Singh vs. State of U.P., reported in (2012) 8
SCC 289;
(iii) Ankush Shivaji Gaikwad vs. State of Maharashtra,
reported in (2013) 6 SCC 770;
(iv) Chenda vs. State of Chhattisgarh, reported in
(2013) 12 SCC 110;
(v) Surain Singh vs. State of Punjab, reported in (2017)
5 SCC 796;
(vi) Anbazhagan vs. State, reported in 2023 SCC OnLine
SC 857; and
(vii) Velthepu Srinivas vs. State of Telangana, reported
in 2024 SCC OnLine SC 107.
35. As regards, conviction under Section 379 of the IPC, we
find that the appellant has been alleged to have grabbed the
Patna High Court CR. APP (DB) No.700 of 2016 dt.12.02.2025
bicycle and land related documents, whereafter he had ran away
but the same does not stand corroborated by the evidence of
P.W.2 and P.W.3. As far as P.W.4 is concerned, he has made a
general and omnibus allegation that all the accused persons had
ran away with the cycle and documents of the deceased,
however, no specific allegation has been levelled qua the
appellant herein. As far as P.W.1 is concerned, the defence has
been able to elicit contradiction while cross-examining P.W.8,
who has stated that P.W.1 has not stated before him that the
appellant had taken cycle and ran away. In the facts and
circumstances, we are of the view that conviction of offence
under Section 379 of the IPC does not stand proved against the
appellant, considering the evidence available on record, hence
the finding of conviction recorded by the learned Trial Judge
under Section 379 of the IPC, vide judgment dated 06.06.2016
is set aside qua the appellant herein.
36. The appellant herein, namely, Arjun Rai was granted bail
during the pendency of the present appeal, vide order dated
19.06.2020. In view of the fact that the appellant has now stood
convicted under Section 304 Part II of the IPC and sentenced to
undergo rigorous imprisonment for ten years by the instant
judgment, the bail bonds of the aforesaid appellant is hereby
Patna High Court CR. APP (DB) No.700 of 2016 dt.12.02.2025
cancelled and he is directed to surrender before the learned Trial
Court for being sent to jail for serving the remaining sentence.
37. Accordingly, the present appeal, i.e. Cr. Appeal (DB) No.
700 of 2016 is partly allowed to the extent indicated above.
(Mohit Kumar Shah, J)
Shailendra Singh, J:- I agree.
( Shailendra Singh, J)
kanchan/-
AFR/NAFR NAFR
CAV DATE 18.01.2025
Uploading Date 12.02.2025
Transmission Date 12.02.2025
