Nand Kishore Rai And Ors vs The State Of Bihar
2025 Latest Caselaw 1739 Patna

Patna High Court

Nand Kishore Rai And Ors 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.673 of 2016
           Arising Out of PS. Case No.-37 Year-2005 Thana- TAJPUR District- Samastipur
     =====================================================
1.    Nand Kishore Rai
2.   Subodh Rai
3.   Ranjeet Rai
     All sons of Late Ram Uchit Rai, resident of village-Keshonarainpur, P.S.
     Tajpur (Halai), District Samastipur
                                                                         ... ... Appellants
                                            Versus

     The State of Bihar                        ... ... Respondent
     ======================================================
     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. 66 of 2008 (arising out of Tajpur (Halai O.P.) P.S. Case Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

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 appellants for commission of the offences under

Sections 302 and 379 of the Indian Penal Code (hereinafter

referred to as "IPC") and has sentenced them to undergo

rigorous imprisonment for life under Section 302 of the IPC

with fine of Rs.50,000/- and in default they have been directed

to undergo rigorous imprisonment for a further period of six

months separately. All the appellants have 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 Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

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 (Appellant No.2), Nand Kishore Rai (Appellant

No.1), Sanjeet Roy and Ranjeet Rai (Appellant No.3), who were

present there from before, armed with lathi and khanti had

surrounded the deceased-informant whereupon Arjun Rai had

exhorted the other accused persons to beat 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

(appellant No.2), 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 (appellant No.3) 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. Then Nand Kishore Rai (appellant No.1) had sat

on the chest of the deceased-informant and with the butt of pistol Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

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.4)

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

(Appellant No.1) 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 appellants and two

others, namely Arjun Rai and Sanjeet Rai. Subsequently, on

account of the death of the informant, Section 302 of the IPC Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

was added vide order dated 12.02.2005 by the learned Trial

Court. After investigation and finding the case to be true qua the

appellants and two others, the police had submitted charge sheet

on 31.12.2005 against the appellants herein 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.66 of 2008. 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 appellants to which they

pleaded not guilty and claimed to be tried.

4. During the course of trial, six prosecution witnesses were

examined i.e. P.W.1 Himanshu Shekhar (nephew of the deceased-

informant), P.W.2 Prabhat Ranjan (son of the deceased-informant),

P.W.3 Ram Kumar Singh, P.W.4 Sanjay Kumar Sharma (son of the

deceased-informant), P.W.5, Subodh Kumar Singh (Investigating

Officer) and P.W.6 Dr. Purushottam Kumar (Doctor who had

conducted autopsy of the deceased).

5. Shri Ajay Kumar Thakur, the learned counsel for the

appellants has submitted that the person, who has scribed the Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

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 &

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 appellants. 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 Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

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 appellants 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

appellants did not have any intention to kill the deceased nor they

had knowledge that by assaulting the deceased-informant in the

manner they have 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 appellants. In fact, no incriminating articles/materials have

been found from the place of occurrence and the evidence of the Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

witnesses is full of contradictions, hence not fit to be relied upon.

It is also submitted that the FIR attesting witness, namely Ram

Kumar Singh has stated in his evidence that he never went to the

hospital, thus it is surprising as to how he had put his signature on

the fardbeyan, thus the earliest version has been withheld by the

police, moreso, since the son of the deceased, namely, Sanjay

Kumar Sharma has said that he had given his statement at Halai,

but does not remember whether he had named the accused persons

or not. 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 appellants has referred to

various judgments on the issue of admissibility of a dying

declaration, which are being enumerated herein below:-

(i) Judgment rendered by the Hon'ble Apex Court in the

case of Manjunath & Others vs. State of Karnataka,

reported in 2023 SCC OnLine 1421. It has been held in

the said judgment that examination of the person who

reduced into writing the dying declaration is essential and

in case the scribe, for reasons beyond control such as

incapacitation or death is unavailable, it would be open

for the prosecution to take necessary aid of secondary

evidence but otherwise unexplained non-examination of Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

the scribe would render the case to be doubtful and would

land a fatal blow to the prosecution case.

(ii) Judgment rendered by the Hon'ble Apex Court in the

case of Paramjit Singh vs. State of Punjab, reported in

(1997) 4 SCC 156. In the said case, the Hon'ble Apex

Court has held that it would be totally unsafe to accept the

testimony of a witness who had sustained serious injuries

and had become semi-unconscious after recording of the

dying declaration and in case the dying declaration

contains even the minutest details and does not inspire

confidence, the same should be left out of consideration.

(iii) Judgment dated 13.08.2024, rendered by the learned

Division Bench of the Hon'ble Patna High Court, in the

case of Saurav Sharma & Anr. vs. the State of Bihar

(Criminal Appeal (DB) No.1271 of 2017). In the said

case, the learned Division Bench of the Hon'ble Patna

High Court, considering various judgments rendered by

the Hon'ble Apex Court, has summarized the broad

principles regarding admissibility of a dying declaration

as evidence, which are reproduced herein below:-

"(1) Each dying declaration must be scrutinized on its own merits. The Court has to examine upon which of the statements reliance can be placed in Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

order for the case to proceed further. Medical fitness of the person making such declaration, at the relevant time, assumes importance along with other factors such as possibility of tutoring by the relatives etc.;

(2) If the Court is satisfied that the dying declaration is true and trustworthy, it can base conviction upon it without corroboration.; (3) The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination and the declarant was in a fit state to make the declaration.;

(4) Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected.;

(5) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.;

(6) The Court, in order to satisfy whether deceased was in a fit mental condition to make the dying declaration, look up to the medical opinion, but where eye-witnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail. (7) The Magistrate being a disinterested witness and a responsible officer and there being no circumstances or material to suspect that the Magistrate had any animus against the accused or was in any way interested in fabricating a dying Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

declaration, question of doubt in declaration recorded by the Magistrate does not arise."

(iv) Judgment rendered by the Hon'ble Apex Court in the

case of Uttam vs. State of Maharashtra, reported in

(2022) 8 SCC 576. In this case, the Hon'ble Apex Court

has held that dying declaration is the last statement that is

made by a person as to the cause of his imminent death or

the circumstances that had resulted in that situation at a

stage when the declarant is conscious of the fact that there

are virtually NIL chances of his survival. Section 32 of

the Indian Evidence Act, 1872 (hereinafter referred to as

"the Act, 1872") states that when a statement is made by a

person as to the cause of death, or as to any of the

circumstances which resulted in his death, in cases in

which the cause of that person's death comes into

question, such a statement, oral or in writing made by the

deceased victim to the witness is a relevant fact and is

admissible in evidence. It has been further held in the said

case that if a dying declaration suffers from some

infirmity, it cannot be the sole basis for convicting an

accused inasmuch as it is the duty of the prosecution to

establish the charge against the accused beyond

reasonable doubt and the benefit of doubt should always Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

go in favor of the accused. Thus, though dying declaration

is a substantive piece of evidence, however it has to be

relied upon in case it is proved that the same was

voluntary, truthful and the victim was in a fit state of

mind. 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 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;

Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

(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 tutoring by interested parties."

(v) Judgment rendered by the Hon'ble Apex Court in

the case of Govind Narain vs. State of Rajasthan,

reported in 1993 Supp (3) SCC 343. In the said case, it

has been held by the Hon'ble Apex Court that unless a Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

dying declaration is proved by cogent and reliable

evidence it cannot be relied upon and in case the

witnesses to the dying declaration are totally inconsistent

and differ on material points, it is unsafe to rely on such a

dying declaration. It has also been held that where for an

unexplained reason, the scribe has not been produced for

examination/cross-examination, reliance should not be

placed on such a dying declaration.

(vi) Judgment rendered by the Hon'ble Apex Court in

the case of Sudhakar vs. State of Maharashtra, reported

in (2000) 6 SCC 671. In the said case, it has been held

that due weight is required to be given to a dying

declaration, however, the person or the agency relying

upon it is under a legal obligation to prove the making of

the statement as a fact and 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 heard the

deceased making the statement.

8. The learned counsel for the appellants 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 Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

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 appellants 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 appellants 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 P.W.3 Ram Kumar Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

Singh has stated in his evidence that he had made signature on

the fardbeyan of the deceased-informant, hence the same stands

proved and in fact, cross-examination has not been conducted

by the defence on the issue of recording of the fardbeyan. He

has also submitted that P.W.4 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, thus it is submitted that P.W.4 has proved the fardbeyan,

hence the same can be relied upon for the purposes of upholding

the conviction of the appellants. It is next contended that P.W.5,

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 was

marked as Ext.1/1, thus the fardbeyan has definitely stood

proved.

10. At this juncture, the learned counsel for the informant 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 Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

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 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 though inflicted by

the appellant no.1 Nand Kishore Rai and co-convict Arjun Rai,

however the other co-convicts will be covered by virtue of

Section 34 of the IPC. In this connection, reference has been Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

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 appellants. He has referred to

evidence of P.W.1 Himanshu Shekhar, to submit that the

evidence has not been contradicted by the Investigating Officer

(P.W.5), hence his evidence is enough to uphold the conviction

of the appellants. The learned Additional Public Prosecutor for

the State has next referred to the evidence of P.W.6 i.e. Dr.

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 Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

Punjab, reported in (2006) 12 SCC 283, to contend that the

Hon'ble Apex Court has 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 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 Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

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

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:-

Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

"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 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 Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

their testimony, no interference is required in the judgment of

conviction and the order of sentence rendered 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 Himanshu Shekhar has stated in his evidence that

the occurrence dates back to 09.02.2005 at about 9:00 a.m. in

the morning when he was cutting jai crops and on hearing hulla

(alarm) he went to the place of occurrence situated at a pitched

road and saw that the deceased-informant, namely, Shiveshwar

Sharma was being beaten by Arjun Rai, Subodh Rai (Appellant

No. 2), Nand Bali Rai (Appellant No. 1), Ranjit Rai (Appellant

No. 3) and Sanjit Rai, who were armed with khanti and rod.

Nand Bali (Appellant No. 1) was armed with pistol and others

were armed with lathi. P.W.1 has further stated that all the

accused persons had assaulted the deceased-informant,

whereafter, Arjun Rai has snatched the BSA cycle, a sum of

Rs.1500/- in cash and land related documents from the

deceased-informant and had then fled away. The injured was

then taken to Samastipur Government Hospital where he was Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

treated and there the statement of the injured was recorded by

the police. Thereafter, the injured was referred to Patna but since

his condition was bad, he was taken to Dr. R.R. Jha's clinic and

admitted there, however, he died during the course of treatment.

P.W.1 had recognized Nand Bali Rai and Ranjeet Rai, who were

standing in the dock, as also has stated that he can recognize the

other accused persons. P.W.1 has stated in his cross-examination

that the deceased is his uncle and their houses are situated side

by side. The place of occurrence has been described by him to

be situated half a kilometer east of his house and towards the

southern side at a distance of 8-10 bamboo length (lagga), jai

fields are situated. In between jai field of P.W.1 and the place of

occurrence, the field of 3-4 persons are situated and at that time,

along with him, the persons working in the said fields had also

gone towards the place of occurrence who were Pandav Sharma,

Devendra Sharma, Bhola Singh and Ram Kumar Singh. P.W.1

has stated that when they had reached the place of occurrence,

5-6 people were present and thereafter, many persons had

arrived there. P.W.1 had seen his uncle falling down and

becoming unconscious as also blood was oozing from his body

and his clothes had been soaked with blood. Thereafter, the

people who had arrived there had lifted his uncle and taken him Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

to Samastipur Government Hospital and he had also gone there

where treatment was given and then the deceased had regained

consciousness and had given statement to the police, however,

his condition started becoming bad, hence they were told to take

him to Patna but they took him to Dr. R.R. Jha's clinic where

treatment was given for an hour and then the informant had

died. P.W.1 has also stated that when he had reached at the place

of occurrence, he saw that all the accused persons were beating

the deceased and he had given statement before the police

wherein he had stated that Subodh and Arjun Rai, who were

armed with iron rod, Nand Bali armed with pistol and other

accused persons, who were armed with lathi had beaten the

deceased and Arjun Rai had looted cycle, Rs.1500/- and

documents of the land. P.W.1 has next stated that deceased-

informant was having dispute with the villagers.

15. P.W.2 Prabhat Ranjan has stated in his evidence that the

occurrence dates back to 09.02.2005 which was Wednesday and

it was around 9 a.m., in the morning. P.W.2 is stated to be

working at a distance of 200 yard west of the place of

occurrence when an alarm was raised and then he had ran and

gone to the place of occurrence where he saw that Arjun Rai,

Subodh Rai (Appellant No. 2), Nand Kishore Rai (Appellant Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

No. 1), Sanjeet Rai and Ranjeet Rai (Appellant No. 3) were

assaulting his father. The place of occurrence is situated near the

Surbhi pokhar, towards the eastern side near the road. P.W. 2

has stated that he had seen Arjun Rai and Subodh Rai

(Appellant No. 2) assaulting his father by khanti, whereas Nand

Kishore Rai @ Nanda (Appellant No. 1) was sitting on the chest

of his father and was assaulting him with the butt of the pistol.

Sanjeet Rai and Ranjeet Rai (Appellant No. 3) were beating the

father of P.W.2 by lathi, whereas Ramjee Rai was exhorting the

other accused persons to kill the father of P.W.2. Arjun Rai had

then taken away the BSA cycle and land related documents and

fled away, while Nand Kishore Rai (Appellant No. 1) had taken

out a sum of Rs.1500/- from the pocket of the deceased and fled

away. P.W.2 has further stated that thereafter, his father was

taken to the hospital in a car where treatment was given to him,

however, when the situation became bad he was referred to

PMCH, Patna and in the meantime, the police had come and

recorded the fardbeyan of his father and since his father had

received several injuries in the right hand, as such he was not

able to put his signature, hence he had put his thumb

impression. P.W. 2 has next stated that his father could not be

taken to Patna but he was taken to Dr. R.R. Jha's clinic at Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

Samastipur where he died at 9:00 p.m. in the night. P.W.2 has

stated that the fardbeyan of his father was recorded in presence

of Ram Kumar Singh and Sanjay Kumar Sharma who had also

put their signatures on the fardbeyan. P.W.2 had also recognized

the appellants. In cross-examination, P.W.2 has stated that his

statement was recorded by the police and he had told the police

that when he reached the place of occurrence he saw Arjun Rai,

Subodh Rai (Appellant No. 2), Nand Kishore Rai (Appellant

No. 1), Sanjeet Rai and Ranjeet Rai (Appellant No. 3) beating

his father and while Arjun Rai and Subodh Rai (Appellant No.2)

were assaulting his father by khanti, Nand Kishore Rai

(Appellant No. 1) was sitting on the chest of his father and was

assaulting him by the butt of the pistol. P.W.2 has also stated

that he had told the police that Ramji Rai was exhorting the

accused persons and then Ranjeet Rai (Appellant No.3) and

Sanjeet Rai had repeatedly assaulted the deceased by lathi.

P.W.2 has stated that on the eastern side of his house, at about

half a kilometer, the place of occurrence is situated from where

road passes-by through the pond. He has also stated that when

he reached at the place of occurrence, 10-15 persons were

present there and all were villagers, blood had fallen at the place

of occurrence where vegetable was grown and the clothes of his Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

father were soaked with blood. P.W.2 has stated that at that time

his father was conscious but sometime he used to get

unconscious. Thereafter, the father of P.W.2 was lifted and taken

to Samastipur. At about 11:00 a.m., father of P.W.2 was brought

to the government hospital where he was becoming conscious/

unconscious and the doctor had asked to take the informant to

Patna. Then the Office-in-Charge had arrived there and recorded

the fardbeyan of the father of P.W.2, in the evening and at that

time also he was becoming conscious/unconscious, however he

had given his statement while he was conscious and thereafter,

he had become unconscious. The informant was then taken to

the clinic of Dr. R.R. Jha at about 7:00 p.m. and there also, he

was becoming conscious and unconscious and then he died at

about 9:00 p.m. in the night. He has also stated that the accused

persons have filed a criminal case under Section 307 of the IPC,

which is still going on and in fact his father was also fighting

several cases relating to land dispute.

16. P.W.3 Ram Kumar Singh has stated in his evidence that

on 09.02.2005 at about 9-9:30 a.m. in the morning he was going

to the in-laws' place of his child situated at Nathpura, on his

motorcycle alone and when he had reached at the pond situated

just before the village, he saw some people had assembled there Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

and were beating one person by rod, khanti and lathi. They were

beating Shiveshwar Sharma. Arjun Rai, Subodh Rai (Appellant

No. 2), Ranjeet Rai (Appellant No. 3) and others were beating

Shiveshwar Sharma resulting in him becoming unconscious and

blood was oozing from his hands and legs. Thereafter, alarm

was raised whereupon his son Sanjay Sharma and Prabhat

Sharma had arrived there and then the injured was taken for

treatment to Samastipur Sadar Hospital from where he was

referred to P.M.C.H., Patna. The Police had recorded the

statement of the injured at Samastipur itself, however the

injured died during the course of treatment at the clinic of Dr.

Rati Raman Jha. P.W.3 has also stated that he had made his

signature on the fardbeyan. He had also recognized all the

accused persons standing in the dock. In cross-examination,

P.W.3 has stated that his brother's father-in-law is Ramakant

Singh and he did not use to go there frequently but went there if

required. He has stated that his house is situated at a distance of

about a kilometer from the place of occurrence. P.W.3 has stated

that when he reached at the place of occurrence, he saw

Shiveshwar Sharma fallen down on the ground, the accused

persons were beating him and at that time nobody belonging to

the said place was present there, however he had raised an Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

alarm, whereafter the co-villagers and family members of the

deceased had arrived there and when the said persons had

chased the accused persons, they had fled away and then all the

people had gone near the injured person and had seen that he

was becoming conscious/unconscious at regular intervals. He

has also said that apart from the family members of the

deceased, 25 people of the village were present there, whereafter

the people present there had lifted the injured and taken him to

Sadar Hospital, Samastipur. He has stated that he had not gone

along with them but had gone to the in-laws' place of his child,

however, they were not present and after staying there for half

an hour he had gone back to his house and narrated the incident

to his family members.

17. P.W.4 Sanjay Kumar Sharma, who is the son of the

deceased-informant has stated in his evidence that the informant

is his father and the occurrence had taken place about seven

years back on 09.02.2005 (Wednesday). He has stated that his

father had got ready to go to Samastipur Civil Court at about

9:30 a.m. in the morning and he had to accompany him but he

had stayed back on account of some work and had told his

father that he would come from behind, hence his father had left

his house before him on a cycle, whereafter he had also left his Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

house on a cycle. P.W.4 has also stated that when his father had

reached towards eastern side of Subadhi pond, he had also

reached there from behind and then he saw that Arjun Rai armed

with khanti, Subodh Rai (appellant no.2), armed with iron

khanti and Nand Kishore Rai (appellant no.1) armed with pistol

were beating his father and pressing his neck. Ranjeet Rai

(appellant no.3) and Sanjeet Rai were also assaulting the father

of P.W.4 by lathi. It has been stated by P.W. 4 that his father was

injured badly, had fallen down as also his right hand had been

fractured apart from him receiving injury on the left hand and

leg and he had also received injury on his chest. Thereafter,

Arjun Rai had fled away with the cycle of the father of P.W.4,

on which a bag was hanging containing pension and title suit

related documents. The informant was then taken to Sadar

Hospital, Samastipur for treatment where he was treated and

during the course of treatment, the police had arrived at the

hospital and recorded the statement of the father of P.W.4. As

the hand of the father of P.W.4 had broken, he had put thumb

impression. The condition of father of P.W.4 had deteriorated,

hence the doctor had referred him to PMCH, Patna but on

account of his condition becoming worse he was taken to Dr.

R.R. Jha's clinic at Samastipur where the treatment had started, Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

however, during the course of treatment he died on the same day

at about 10 O'clock, in the night. P.W.4 has stated that he had

also put his signature on the fardbeyan of his father which he

recognizes and the same has been exhibited as Ext.1. He had

also recognized all the accused persons standing in the dock,

namely, Subodh Rai (Appellant No. 2), Ranjeet Rai (Appellant

No. 3) and Nand Kishore Rai (Appellant No. 1).

18. In cross-examination, P.W.4 has stated that his statement

was also recorded by the police and he had stated before the

police that Arjun Rai and Subodh Rai (Appellant No. 2) armed

with khanti and Nand Kishor Rai (Appellant No. 1) armed with

pistol were assaulting his father and pressing his neck and

Ranjeet (Appellant No. 3) and Sanjeet were also assaulting his

father by lathi. P.W.4 has further stated that when he reached at

the place of occurrence about ten people of the locality were

present there including Ram Kumar Singh, Kamta Prasad Singh,

Ramanand Singh, Pandav Singh etc., who were standing at a

distance of about 50-100 yards separately and when they had

raised an alarm, the family members had reached there and then

they saw that the informant had fallen down, was wriggling in

pain in an injured condition, blood was oozing out from his

body and his clothes had become soaked with blood. P.W.4 has Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

further stated that they had then called a Marshal vehicle at the

place of occurrence and had gone to Samastipur via Halai Police

Station where oral information about the occurrence was given,

however he does not remember whether he had disclosed or not

about the names of the accused persons. P.W.4 has also stated

that they had reached Samastipur Hospital, at about 12:00 hours,

where his father used to get conscious and unconscious

intermittently from where he was referred to Patna, but the

informant was taken to Dr. R.R. Jha's Clinic for taking opinion,

where the informant was conscious till 7-8 O'clock in the

evening and then he did not regain full consciousness, however

after two hours he died. P.W.4 has stated that the accused

persons have also filed a case against him and his father under

Section 307 of the IPC and a title suit is going on in between

both the sides. P.W.4 has denied the suggestion that his father

had fallen down and got injured on account of accident and that

his father had not given any statement to the police and instead

his thumb impression was taken in an unconscious state.

19. P.W.5 Subodh Kumar Singh, who is the investigating

officer of the present case, has stated in his evidence that on

10.02.2005, he was In-charge of Halai Outpost and on that day,

the fardbeyan of Shiveshwar Prasad Sharma was received from Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

the Town Police Station, Samastipur, whereafter he had sent it to

the Officer-in-charge for registration of a case. He has identified

his signature on the forwarding note which has been marked as

Ext.1/1. On the basis of fardbeyan of Shiveshwar Prasad

Sharma, Tajpur P.S. Case No.37 of 2005 was registered on

11.02.2005 under Sections 148, 307 and 379 of the IPC. The

informant had died in the night of 09.02.2005 during the course

of treatment and the inquest report of the deceased was received

on 10.02.2005. P.W.5 has identified the carbon copy of the

inquest report, which has been written in the writing of the then

Inspector of Town Police Station, Samastipur, namely, R. D.

Singh who had also put his signature, which has been

recognized by P.W.5 and marked as Ext.2. P.W.5 has further

stated that after taking charge of the investigation, he had gone

to the house of the deceased, situated at village-Kesav

Narayanpur where he had recorded the statement of the

witnesses, namely, Asharfi Sada, Ashok Kumar, Pradev Thakur,

Sita Devi, Ram Muni Singh, Rajesh Kumar and Rajkumari Devi

as also had inspected the place of occurrence. P.W.5 has stated

that the place of occurrence is situated near the road, 100 meter

east of Kesav Narayanpur. The road at the place of occurrence is

12 feet wide and on both the sides of the road, 3-4 feet wide raw Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

soling is present and on the northern place of occurrence wheat

crop field of the accused Arjun Rai is present whereas on the

southern side of the place of occurrence, crop field of Awadhesh

Sharma is present. P.W.5 has stated that he had recorded the

statement of witnesses, namely, Pandav Singh, Maheshvar

Prasad Sharma, Sanjay Kumar Sharma (P.W.4), Prabhat Rajan

(P.W.2), Himansu Shekhar (P.W.1). He had also received the

postmortem report of the deceased from Sadar Hospital. P.W.5

has further stated that on the basis of statement of the witnesses,

inspection of the place of occurrence and postmortem report, he

had submitted the charge sheet against accused Sanjeet Rai and

Arjun Rai while keeping the investigation pending qua the other

accused persons, however subsequently charge sheet was

submitted against the rest of the accused persons while showing

others to be absconder. He has said that he had not recorded the

statement of the deceased. P.W.5 has also stated that after

receiving fardbeyan and the inquest report, he had gone to the

place of occurrence where he had met the son and other family

members of the deceased, whereafter he had recorded their

statement. P.W.5 has stated that on 24.02.2005 he had recorded

the statement of Prabhat Ranjan (P.W.2) who had not disclosed

in his statement that Ramjee Rai had given order to kill the Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

deceased upon which accused Subodh Rai (Appellant no.2) had

assaulted with butt of the pistol, whereafter Nand Kishore

(Appellant No. 1) had assaulted by khanti and pressed the neck

of the deceased. P.W.5 has denied that Prabhat Ranjan (P.W.2)

had stated before him that accused Arjun Rai had taken away

cycle while Nand Kishore (Appellant no.1) had snatched a sum

of Rs.1500/- from the deceased. P.W.5 has stated that P.W.2 had

stated before him that at the time of occurrence he was planting

vegetable at his house along with his brother. P.W.5 has also

stated that the witness Ashrafi Sada had not stated before him

that Arjun and Subodh were assaulting by whip (sota) and iron

rod (chharh). P.W.5 has stated that witness Ram Kumar Singh

(P.W.3) had not stated before him that Subodh (Appellant no.2)

was armed with khanti and Arjun with rod. P.W.5 has also stated

that witness Himanshu Shekhar (P.W.1) had stated that Nand

Kishore (Appellant No. 1) was assaulting the deceased by pistol,

Arjun and Subodh (Appellant No. 2) by rod and Ranjeet

(Appellant No. 3) by lathi. P.W.5 has also stated that the

witness, namely Sanjay Kumar Sharma had not stated before

him that Ramji was standing at the place of occurrence and had

ordered to kill the deceased as also he had not stated that Nand

Kishore (Appellant No. 1) was sitting on the chest and pressing Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

his neck and that Ranjeet (Appellant No. 3) and Sanjeet were

assaulting the deceased by khanti. P.W.5 has also denied the

suggestion that his investigation is faulty.

20. P.W.6 Dr. Purushottam Kumar, is the doctor, who had

conducted postmortem on the dead body of the deceased,

namely Shiveshwar Prasad Sharma, who was posted at

Samastipur Sadar Hospital in the year 2005 and upon

conducting the postmortem examination he 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.

Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

(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

& right knee joint & right and right lower thigh.

(xv) Multiple bruises over left side chest (front) ½ " x ½ "

to ½" x ¼".

21. 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.

Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

(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

by above mentioned injuries.

22. P.W.6 has proved the postmortem report which is in his

writing and has been marked as Ext.3. In his cross-examination,

P.W.6 has stated that all the injuries have been found on non-

vital parts except injury no.15. He has stated that length and

width of all the injuries were found to be between 1" x ¼ "

except injury no.9. P.W.6 has stated that he cannot say as to

whether the injuries were caused on account of hard blunt Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

substance or lathi. He has also stated that he cannot say about

such injuries which have been found to be stitched at the time of

postmortem examination. P.W.6 has stated by way of conclusion

that the injuries found on the body of the deceased were

sufficient to cause death.

23. After closing the prosecution evidence, the learned Trial

Court recorded the statements of the appellants on 07.11.2014

under Section 313 of the CrPC for enabling them to personally

explain the circumstances appearing in the evidence against

them, however in their respective statements, they claimed

themselves to be innocent.

24. The trial Court, upon appreciation, analysis and scrutiny

of the evidence adduced at the trial has found the aforesaid

appellants guilty of the offences and has sentenced them to

imprisonment and fine, as noted above, by its impugned

judgment and order.

25. A bare perusal of the evidence of the prosecution reveals

that on 09.02.2005 at 9:00 a.m. in the morning, the appellants

herein as also Arjun Rai and Sanjeet Rai had surrounded the

deceased-informant, whereafter Arjun Rai and Subodh Rai

(Appellant No.2) armed with khanti had assaulted the deceased-

informant, leading to fracture of his right hand and right elbow Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

and in the meantime Nand Kishore Rai (Appellant No.1) 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 Rai and Ranjeet Rai (Appellant No.3) had

mercilessly 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

Himanshu Shekhar, P.W.2 Prabhat Ranjan, P.W.3 Ram Kumar

Singh and P.W.4 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 appellants herein

and two 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

appellants.

26. The prosecution's narrative in the FIR is fully supported Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

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.

27. In fact, the appellants have 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.5 Subodh Kumar Singh (Investigating

Officer) to elicit his response, however, a bare perusal of the

evidence of P.W.5 would show that as far as P.W.1 is concerned no

contradiction could be extracted inasmuch as P.W.5 has stated that

P.W.1 had stated that Nand (Appellant No.1) was assaulting the

deceased by pistol, Arjun and Subodh (Appellant No.2) by rod,

Ranjeet (Appellant No.3) by lathi, a statement which is absolutely

consistent with the FIR and there is no contradiction. P.W.5 has

further stated that as far as P.W.2 Prabhat Ranjan is concerned, he

had not disclosed in his statement made before him that Ramjee

Rai had given order to kill the deceased upon which Subodh Rai

(Appellant No.2) had assaulted with the butt of the pistol and then Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

Nand Kishore (Appellant No.1) had assaulted by khanti and

pressed the neck of the deceased, inasmuch as even the FIR does

not state that Ramjee Rai had given order to kill, therefore there is

no discrepancy. Similarly, the statement of P.W.5 to the effect that

P.W.3 Ram Kumar Singh had not stated before him that Subodh

(Appellant No.2) was armed with khanti and Arjun with rod is also

a minor discrepancy. As far as P.W.4 Sanjay Kumar Sharma is

concerned, no contradiction has been elicited inasmuch as P.W.5

has stated in his cross-examination that P.W.4 had not stated that

Ramjee was standing at the place of occurrence and had ordered to

kill the deceased and that Ranjeet (Appellant No.3) and Sanjeet

were assaulting the deceased with khanti. 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 effect the prosecution case

as these witnesses do not appear to be untrustworthy.

28. Now coming to the fardbeyan of the deceased-informant,

it has been argued at great length by the learned counsel for the

appellants 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 Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

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 appellants

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

fit state of mind to give a statement. The learned counsel for the

appellants 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. Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

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.

29. 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.4 Sanjay Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

Kumar Sharma and in fact P.W.4 has also identified his

signature during the course of trial, which has been marked as

Ext.1. As far as P.W.3 is concerned, he has also stated in his

evidence that he had made signature on the fardbeyan but we

find that the defence is trying to take advantage of the

contradiction in his statement made during the course of his

cross-examination but actually it is not so, since he has merely

stated in his cross-examination that at the time when the

villagers had lifted the deceased-informant and taken him to

Samastipur Government Hospital, he had not gone along with

them, however he has nowhere denied that subsequently he had

gone to the hospital, hence the same would not matter much.

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 Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

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).

30. 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.4

Sanjay Kumar Sharma as also P.W.3 Ram Kumar Singh, who Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

had put their signature over the same, 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.

31. As far as the argument of the learned counsel for the

appellants to the effect that independent witnesses and material

witnesses have been withheld which has prejudiced the

appellants, 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 appellants. 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 Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

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 manner. In Rana Pratap v. State of Haryana [(1983) 3 SCC 327] Chinnappa Reddy, J., speaking for this Court Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

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 evidence of

prosecution witnesses are cogent, convincing, creditworthy and

reliable apart from the fact that P.W.3 Ram Kumar Singh is an

independent eye witness, 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 appellants does not merit any consideration.

32. Now coming to the last submission made by the learned

counsel for the appellants to the effect that the present case will

not fall within the ambit of Section 302 IPC inasmuch as though Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

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 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 (appellant No.1)

though he was armed with pistol, thus we are of the view that it

cannot be concluded that the intention of the appellants 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 appellants and two 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 were sufficient to cause his death. Therefore, we find

that the appellants and two others had though engaged in Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

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 appellants and

other accused persons 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 appellants are

liable to be convicted under Section 304 Part II of the IPC, thus

the conviction of the appellants 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 appellants are convicted under Section 304 Part II of Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

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.

33. As regards conviction under Section 379 of the IPC, we

find that appellant nos. 2 and 3 have not been alleged to have

either grabbed bicycle or land related documents or snatched a

sum of Rs.1500/- from the deceased-informant, however, the

allegation has been made against appellant no.1 of snatching a

sum of Rs.1500/- from the deceased-informant but the same has Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

not stood corroborated by the evidence of P.W.1 and P.W.3,

nonetheless P.W.2 has though stated that appellant no.1 had

snatched Rs.1500/- from his father, however the defence has

been able to elicit contradiction while cross-examining P.W.5,

who has stated that P.W.2 had not stated before him that the

appellant no.1 had snatched a sum of Rs.1500/- from the

deceased. In the facts and circumstances of the case we are of

the view that commission of offence under Section 379 IPC

does not stand proved against the appellants, 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 dt. 06.6.2016 is set aside, qua the appellants.

34. The appellant no.2, namely Subodh Rai and the appellant

no.3, namely Ranjeet Rai were granted bail during the pendency

of the present appeals by orders dated 23.02.2023 and

22.03.2023 respectively. In view of the fact that the appellants

have now stood convicted under Section 304 Part II of the IPC

and sentenced to rigorous imprisonment for 10 years by the

instant judgment, the bail bonds of the aforesaid two appellants

are hereby cancelled and they are directed to surrender before

the learned Trial Court for being sent to jail for serving the

remaining sentence. As far as the appellant no.1, namely, Nand Patna High Court CR. APP (DB) No.673 of 2016 dt.12.02-2025

Kishore Rai is concerned, he is already in custody, hence he is

directed to serve the remaining sentence.

35. Accordingly, the present appeal, i.e. Cr. Appeal (DB)

No.673 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                AFR
CAV DATE                18.01.2025
Uploading Date          12.02.2025
Transmission Date       12.02.2025