Patna High Court
Sanjeet Roy 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. 815 of 2016
Arising Out of PS. Case No.-37 Year-2015 Thana- TAJPUR District- Samastipur
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Sanjeet Roy son of Late Ram Uchit Roy Resident of Village- Kesho
Narayanpur, P.S.- Tajpur (Halai), District- Samastipur.
... ... Appellant
Versus
The State Of Bihar
... ... Respondent
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Appearance:
For the Appellant : Mr. Ajay Kumar Thakur, Advocate
Ms. Vaishnavi Singh, Advocate
Mr. Ritwik Thakur, Advocate
For the State : Mr. Ajay Mishra, APP
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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
04.07.2016
and 11.07.2016, respectively, passed in Sessions
Trial No. 684 of 2005 (S) (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 judgment, the learned Trial
Judge has convicted the appellant for commission of the
offences, under Sections 302 and 379 of the Indian Penal Code
Patna High Court CR. APP (DB) No. 815 of 2016 dt.12-02-2025
(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, Subodh Rai, Nand Kishore Rai, Sanjeet Roy
(Appellant) and Ranjeet Rai, who were present there from
before, armed with lathi and khanti had surrounded the
Patna High Court CR. APP (DB) No. 815 of 2016 dt.12-02-2025
deceased-informant whereupon Arjun Rai had exhorted other
accused persons to assault the deceased-informant and kill him,
whereafter Arjun Rai 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 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 Roy (appellant), with an intention to
kill the deceased-informant had repeatedly assaulted him by
lathi, leading to the portion below the right leg being fractured.
Then 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, 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
Patna High Court CR. APP (DB) No. 815 of 2016 dt.12-02-2025
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 four others, the police had
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
Patna High Court CR. APP (DB) No. 815 of 2016 dt.12-02-2025
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(S). 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 (the doctor who had conducted
the 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
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 &
Patna High Court CR. APP (DB) No. 815 of 2016 dt.12-02-2025
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 the 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 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
Patna High Court CR. APP (DB) No. 815 of 2016 dt.12-02-2025
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. 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 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
Patna High Court CR. APP (DB) No. 815 of 2016 dt.12-02-2025
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
facts keeping in view the circumstances in which
the dying declaration was made;
(3) that it cannot be laid down as a general
Patna High Court CR. APP (DB) No. 815 of 2016 dt.12-02-2025
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 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
Patna High Court CR. APP (DB) No. 815 of 2016 dt.12-02-2025
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
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
Patna High Court CR. APP (DB) No. 815 of 2016 dt.12-02-2025
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 APP 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
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 the Investigating Officer (P.W.8), hence his evidence is
enough to uphold the conviction of the appellant. The learned
APP 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 APP
for the State has relied upon a judgment rendered by the
Patna High Court CR. APP (DB) No. 815 of 2016 dt.12-02-2025
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 Indian Evidence Act, 1872 (hereinafter referred
to as "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
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
Patna High Court CR. APP (DB) No. 815 of 2016 dt.12-02-2025
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."
10. 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
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 the present case, cross-examination has not been
conducted by the defence on the issue of recording of the
fardbeyan. In fact P.W.5 Sanjay Kumar Sharma has stated in his
Patna High Court CR. APP (DB) No. 815 of 2016 dt.12-02-2025
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
appellants. It is contended that P.W.8, i.e. the Investigating
Officer of the present 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. 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
Patna High Court CR. APP (DB) No. 815 of 2016 dt.12-02-2025
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
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."
11. At this juncture, the learned APP for the State has referred
to Section 33 of 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
Patna High Court CR. APP (DB) No. 815 of 2016 dt.12-02-2025
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 the Hon'ble Apex Court has held that the statement
of the victim/deceased made before the witnesses immediately
after the incident assumes the character of dying declaration
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 U/s. 161
CrPC. Reference has also 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 to submit that common
intention can be gathered from the circumstances and the
manner in which the assault is carried out.
12. 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
Patna High Court CR. APP (DB) No. 815 of 2016 dt.12-02-2025
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, Subodh, Nand
Kishore, Sanjeet (Appellant) and Ranjeet were assaulting his
father. The place of occurrence is situated near Subadhi Pokhar
(Pond) towards eastern side near Keso Narayanpur Road. Arjun
Rai 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 had snatched the BSA cycle of
his father and documents of the title suit and ran away and in the
Patna High Court CR. APP (DB) No. 815 of 2016 dt.12-02-2025
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
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 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
Patna High Court CR. APP (DB) No. 815 of 2016 dt.12-02-2025
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
heard hulla (alarm), he had gone to the place of occurrence and
had seen that Arjun Rai, 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
Patna High Court CR. APP (DB) No. 815 of 2016 dt.12-02-2025
Arjun 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,
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, Subodh Rai and Sanjeet Roy (Appellant) were assaulting
the deceased-informant and while Subodh was assaulting by
Patna High Court CR. APP (DB) No. 815 of 2016 dt.12-02-2025
khanti, Arjun Rai 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, where he saw
that the deceased was sometime regaining consciousness and
sometime he was becoming unconscious and he stayed at the
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
Patna High Court CR. APP (DB) No. 815 of 2016 dt.12-02-2025
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, Subodh Rai, Nandbali, Ranjeet and Sanjeet
Roy (Appellant) were assaulting Shiveshwar Sharma. Nandbali
was armed with pistol, Arjun 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
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
Patna High Court CR. APP (DB) No. 815 of 2016 dt.12-02-2025
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
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
Patna High Court CR. APP (DB) No. 815 of 2016 dt.12-02-2025
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 and Subodh armed
with khanti, Nand Kishore armed with pistol and Ranjeet and
Sanjeet (Appellant) 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
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
Patna High Court CR. APP (DB) No. 815 of 2016 dt.12-02-2025
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 and Subodh armed with khanti, Nand Kishore armed
with pistol, Ranjeet and Sanjeet (Appellant) armed with lathi
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,
Patna High Court CR. APP (DB) No. 815 of 2016 dt.12-02-2025
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
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
Patna High Court CR. APP (DB) No. 815 of 2016 dt.12-02-2025
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.
(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
Patna High Court CR. APP (DB) No. 815 of 2016 dt.12-02-2025
& 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
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
Patna High Court CR. APP (DB) No. 815 of 2016 dt.12-02-2025
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.
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
Patna High Court CR. APP (DB) No. 815 of 2016 dt.12-02-2025
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
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 (Appellant) 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
Patna High Court CR. APP (DB) No. 815 of 2016 dt.12-02-2025
received the postmortem report from the Sadar Hospital,
Samastipur and thereafter, on the basis of the statement of
witnesses, inspection of the place of occurrence and the
postmortem report, he had submitted charge sheet against Arjun
Rai and Sanjeet Roy (Appellant) 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 stated
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.
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 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 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
Patna High Court CR. APP (DB) No. 815 of 2016 dt.12-02-2025
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 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 and Subodh armed with rod
and Ranjeet armed with lathi were assaulting the deceased
repeatedly. Lastly, P.W.8 has 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 (Appellant) armed with lathi and Arjun and
Subodh armed with khanti were assaulting the deceased.
25. After closing the prosecution evidence, the learned 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
Patna High Court CR. APP (DB) No. 815 of 2016 dt.12-02-2025
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 Arjun Rai, Nand Kishore Rai, Subodh Rai and
Ranjeet Rai had surrounded the deceased-informant, whereafter
Arjun Rai and Subodh Rai armed with khanti had 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 (Appellant) and Ranjeet Rai had badly 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
Patna High Court CR. APP (DB) No. 815 of 2016 dt.12-02-2025
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 the
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.
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
Patna High Court CR. APP (DB) No. 815 of 2016 dt.12-02-2025
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 (Appellant) were assaulting by lathi
and Arjun and Subodh by khanti, which is not of much
consequence in view of the consistent ocular evidence led by the
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
Patna High Court CR. APP (DB) No. 815 of 2016 dt.12-02-2025
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 the scribe
has not been produced during the course of the Trial, hence the
fardbeyan of the deceased-informant has remained unproved. It
has also been argued by the learned counsel for the appellant
that the evidences 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
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
Patna High Court CR. APP (DB) No. 815 of 2016 dt.12-02-2025
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;
(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
Patna High Court CR. APP (DB) No. 815 of 2016 dt.12-02-2025
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 witnesses 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
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 was not being 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
Patna High Court CR. APP (DB) No. 815 of 2016 dt.12-02-2025
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 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
Patna High Court CR. APP (DB) No. 815 of 2016 dt.12-02-2025
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
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
Patna High Court CR. APP (DB) No. 815 of 2016 dt.12-02-2025
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 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
Patna High Court CR. APP (DB) No. 815 of 2016 dt.12-02-2025
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 evidence of prosecution
witnesses 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
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 they had no knowledge that by
assaulting the deceased-informant in the manner they had done
would have resulted his death. As regards this aspect of the
matter, we have taken into consideration the evidence led by the
Patna High Court CR. APP (DB) No. 815 of 2016 dt.12-02-2025
prosecution from which we find that all the injuries except one
are on non-vital parts of the body of the deceased and moreover,
no grievous/piercing injury has been inflicted by khanti/lathi,
thus we find it difficult to conclude that the intention of the
appellant and other accused persons was to cause death or to
cause such injury which was sufficient in the ordinary course of
nature to cause death, especially in view of the fact that though
Nand Kishore Rai was armed with pistol, however, he had not
fired from the same upon the deceased, nonetheless the fact
remains that the appellant and others had brutally 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
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,
Patna High Court CR. APP (DB) No. 815 of 2016 dt.12-02-2025
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
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;
Patna High Court CR. APP (DB) No. 815 of 2016 dt.12-02-2025
(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 herein has not been alleged to have either
grabbed bicycle or land related documents, or snatched a sum of
Rs.1500/- from the deceased-informant and in fact none of the
witnesses, during the course of the trial, has deposed that the
appellant had ran away with either cycle or the land related
documents or snatched a sum of Rs.1500/- from the deceased. 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 findings of conviction recorded by the learned
Trial Judge under Section 379 of the IPC, vide judgment dated
Patna High Court CR. APP (DB) No. 815 of 2016 dt.12-02-2025
04.07.2016 is set aside qua the appellant herein.
36. The appellant herein, namely, Sanjeet Roy was granted
bail during the pendency of the present appeal, vide order dated
17.09.2019. In view of the fact that the appellant has now stood
convicted under Section 304 Part II of the IPC and sentenced to
rigorous imprisonment for ten years by the instant judgment, the
bail bonds of the aforesaid appellant is hereby 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.
815 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
