Patna High Court
Ram Sevak Sah And Ors vs The State Of Bihar on 6 March, 2025
Author: Mohit Kumar Shah
Bench: Mohit Kumar Shah
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No. 1136 of 2016
Arising Out of PS. Case No.-15 Year-2007 Thana- ADAPUR District- East Champaran
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1. Ram Sevak Sah, Son of Late Yado Lal Sah
2. Sanjay Sah, Son of Panna Lal Sah
3. Awadhesh Sah, son of Jawahir Sah
4. Ashok Sah, Son of Jawahir Sah
5. Madan Sah, Son of Late Vishun Sah
6. Srilal Sah, Son of Vishwanath Sah
All the Above are Residents of Village-Harpur, Police Station-Harpur,
District-East Champaran
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
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Appearance:
For the Appellant/s : Mr. Bindhyachal Singh, Sr. Adv.
Mr. Bipin Kumar Singh, Adv.
For the State : Mr. Dilip Kumar Sinha, Adv.
For the Informant : Mr. Uma Shankar Verma, Adv.
Mr. B.K. Mishra, Adv.
======================================================
CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
and
HONOURABLE MR. JUSTICE NANI TAGIA
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH)
Date: 06-03-2025
The present appeal under Section 374 (2) and Section 389
(1) of the Code of Criminal Procedure, 1973 (hereinafter
referred to as "the Cr.P.C.") has been preferred against the
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
2/56
judgment of conviction and order of sentence dated 27.08.2016
and 02.09.2016 respectively, passed in Sessions Trial No. 403 of
2009 (arising out of Adapur P.S. case No. 15 of 2007) by the
learned VIIIth Additional Sessions Judge, East Champaran at
Motihari (hereinafter referred to as "the learned Trial Judge").
By the said judgment, the learned Trial Judge has convicted all
the appellants under Section 147 and 149/302 of the Indian
Penal Code (hereinafter referred to as "the IPC") and has
sentenced them to undergo two years imprisonment under
Section 147 of the IPC and life imprisonment under Section
149/302 of the IPC with fine of Rs. 10,000/- each and in default
thereof, the appellants have been directed to undergo additional
six months rigorous imprisonment. Both the sentences have
been ordered to run concurrently.
2. Short facts of the case are that on 24.01.2007, a written
report was submitted by Suresh Prasad (the informant) before
the Officer-in-Charge, Police Station-Harpur (Adapur, East
Champaran), wherein he has stated that he is resident of Harpur
and on 24.01.2007 at about 06:30 am in the morning, his elder
brother, Shiv Nath Prasad, was coming after easing himself and
when he had reached at the door of the house of Ram Darshan,
Laxman Sah, Awadhesh Sah (Appellant No. 3), Mahanth Sah,
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
3/56
Vijay Sah, Ajay Sah, Ram Ekbal Sah, Sanjay Sah (Appellant
No. 2), Inar Sah and Ram Sewak Sah (Appellant No.1) had
surrounded him, who were sitting there from before. Thereafter,
these accused persons had caught hold of the elder brother of
Suresh Prasad (informant), namely, Shiv Nath Prasad and had
started assaulting him as also abusing him. In the meantime,
Laxman Sah had given a lathi blow on the forehead of Shiv
Nath Prasad, resulting in his elder brother becoming injured and
falling on the ground. Thereafter, the rest of the accused persons
had also assaulted him with lathi and fatha, leading to his elder
brother becoming unconscious. The witness to the occurrence,
namely, Ram Darshan Sah, Santosh Prasad, Vinod Sah, Manoj
Prasad and Ram Ekbal Prasad had intervened leading to his life
being spared. During the course of intervention, Awadhesh Sah
(Appellant No. 3) had given a lathi blow on the right hand of
Ram Darshan Sah leading to his right hand being fractured.
Then Mahanth Sah had taken out a sum of Rs. 600/- from the
pocket of the elder brother of Suresh Prasad (informant), which
he had earned upon selling vegetables. The informant, namely,
Suresh Prasad, has further stated that on the previous day i.e. on
23.01.2007
in the night, the accused persons, without any
reason, had assaulted Shambhu Sah and Biru Kumar badly and
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
injured them, whereafter he had given information about the
same to the Officer-in-Charge and then the Office-in-Charge had
arrived in the night and seen the injured. It has been stated that
on account of the said reason, today's occurrence has taken
place and the condition of his elder brother Shiv Nath Prasad is
critical, hence, the Doctor at Duncan Hospital, Raxaul, had
referred him to PMCH, Patna, for further treatment. He has also
stated that his elder brother Shiv Nath Prasad was admitted at
Duncan Hospital, Raxaul, in an unconscious state.
3. After the aforesaid written report dated 24.01.2007 was
submitted by Suresh Prasad, a formal FIR bearing Adapur
(Harpur) P.S. case No. 15 of 2007 was registered for the
offences under Sections 147/148/149/341/323/325/307/379/504
of the IPC on 25.01.2007 at about 12:30 hours. Since Shiv Nath
Prasad had died, Section 302 of the IPC was added, vide order
dated 06.02.2007. After investigation and finding the case to be
true qua the appellants and others, the police had submitted
charge-sheet under Sections 147,148,149,323, 325, 341 and 302
of the IPC on 28.1.2008 against Ram Sevak Sah as also against
Sri Lal Sah, Madan Sah and Ashok Sah while showing them to
be absconders. In fact, final form was filed qua the Appellant
No. 3, Awadhesh Sah and Appellant No. 2, Sanjay Sah as they
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
were not found guilty. Nonetheless, the learned Trial Court had
taken cognizance of the offences under Sections 147,148,149,
341, 323, 325 and 302 of the IPC against the appellants by an
order dated 10.03.2008. Thereafter, the case was committed to
the Court of Sessions and was numbered as Sessions Trial No.
403 of 2009. After taking into consideration the charge-sheet
and the materials collected during the course of investigation,
the learned Trial Judge had framed charges under Sections 147
and 302/149 of the IPC against the Appellants, vide order dated
28.10.2009, to which they pleaded not guilty and claimed to be
tried.
4. During the course of trial, nine witnesses have been
examined. While P.W.1 Baijnath Prasad is the cousin of the
deceased, P.W. 3 Kisnawati Devi is the wife of the deceased and
P.W.6 Suresh Prasad is the informant of the present case as also
the brother of the deceased. P.W.2 Shravan Sah is the cousin
brother of the deceased. P.W.7 Ganesh Ram is the Investigating
Officer. P.W.9 Dr. Arun Kumar Singh is the Doctor who had
conducted postmortem of the body of the deceased and P.W.10
Dr. S. K. Paswan is the Doctor who had examined the injured.
As far as P.W.4 Ram Darshan Sah (injured) and P.W.5 Mahendra
Sah are concerned, they are independent witnesses. P.W.8
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
Hardyal Sah has been declared hostile. P.W.11 is an Advocate
Clerk, who has proved the FIR and the inquest report. The
defense had also examined four witnesses.
5. Sri Bindhyachal Singh, the learned Senior Counsel for the
appellants, assisted by Sri Bipin Kumar Singh, Advocate, has
submitted that the written report dated 24.01.2007, leading to
lodging of the FIR on 25.01.2007 is not the earliest version. It is
stated that the written report dated 24.01.2007 has been signed
by Suresh Prasad i.e. the informant, but the same is admittedly
not in his writing and during the course of his evidence, P.W.6
Suresh Prasad has admitted that the same was scribed by
Meghnath Prasad, however, he has not been examined by the
prosecution in the present case. It is also stated that the written
report dated 24.01.2007 does not even contain any recital to the
effect that the FIR was read over to the informant who had
understood the same and had then put his signature after finding
the same to be correct. It is also stated that P.W.6 Suresh Prasad
(informant) has stated in his evidence that he had filed case
against 17 persons, however, the FIR dated 25.01.2007 is
against 9 persons only. Thus, it is submitted that the initial
version has been suppressed. It is also stated that P.W.7 i.e. the
Investigating Officer of this case has stated in his evidence that
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
he had recorded the statement of Ram Darshan Sah at 11:15 pm
on 24.01.2007 itself, thus the same being the first version should
have formed the basis of registration of the FIR in question,
however, the said statement of Ram Darshan Sah has not been
exhibited by the prosecution, which also creates doubt about the
case of the prosecution. It is next contended that there has been
delay in lodging the FIR for which there is no plausible
explanation, hence the case as propounded by the prosecution is
concocted. In this regard, it is stated that though the occurrence
had taken place on 24.01.2007 at about 06:30 am in the morning
and the written report was also submitted before the Officer-in-
Charge, Harpur (Adapur) Police Station, on 24.01.2007 itself,
nonetheless, the FIR was registered only on 25.01.2007 at about
12:30 hours and in fact, Ganesh Ram (Investigating Officer) has
stated in his evidence that though he had started investigation on
24.01.2007 itself and had forwarded the written report to the
Officer-in-charge, Police Station Adapur for instituting FIR,
nonetheless, it appears that the said forwarding note has been
appended subsequently in order to cover the delay and in fact,
the FIR was registered on the next day i.e. on 25.01.2007 and
was received in the Court belatedly on 27.01.2007. Thus, it is
submitted that apparently the earliest version of the incident in
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
question has been withheld and a concocted version of the
incident has been brought on record for the purposes of
registration of FIR. The learned Senior Counsel for the
appellants has further submitted that the witnesses who have
been examined by the prosecution are though stated to be eye-
witnesses but it is not a fact that they are eye-witnesses,
inasmuch as they had arrived at the place of occurrence much
after the occurrence had taken place. In this connection, it is
submitted that as far as P.W.2 Shravan Sah is concerned, he has
stated in his evidence that at the time when Suresh Sah had filed
the case he was outside and had returned home in the evening.
Thus, it is submitted that P.W.2 is admittedly not an eye-witness.
Similarly, it is stated that as far as P.W.3 (Kisnawati Devi) is
concerned, she has stated in her evidence that after she raised
hullah, Suresh (P.W.6), Shravan (P.W.2), Baijnath (P.W.1),
Santosh, etc. and had arrived there. Hence, it is submitted that
admittedly P.W.1, P.W.2 and (P.W.6) had arrived at the place of
occurrence after the occurrence had already taken place, thus
they cannot be stated to be eye-witnesses. P.W.3 (Kisnawati
Devi) has also stated in her evidence that when she reached the
place of occurrence and saw her husband, he was conscious but
he did not tell her as to who had assaulted him, meaning thereby
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
that she was also not present at the time her husband had been
assaulted, thus she cannot also be an eye-witness. P.W.4, Ram
Darshan Sah has stated in his evidence that after he heard hulla
(alarm) he came out of his house after 10 minutes and went to
the place of occurrence where Shivnath Sah was lying on the
ground and he became unconscious after 10 minutes but he did
not talk to him. P.W.5, Mahendar Sah has stated in his evidence
that after he heard hulla (alarm) he went to the door of the house
of Ram Darshan Sah where many people had assembled and he
saw that Shivnath Sah was lying on the ground. Thus, it is
submitted that even P.W.5 cannot be stated to be an eye-witness.
In nutshell, the argument of the learned Senior Counsel for the
appellants is that all the aforesaid witnesses are hearsay
witnesses and not eye-witnesses as is apparent from the
evidence led by the prosecution.
6. The learned Senior Counsel for the appellants has next
contended that it is surprising that though the place of
occurrence is at the middle of the village in question, still the
prosecution has examined only interested witnesses and not
independent witnesses, which further creates a doubt about the
case of the prosecution. It is submitted that most of the
witnesses have been examined by the Police after lapse of
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
considerable time of the occurrence which also leads to the
inference that the correct version has not come on record. The
learned Senior Counsel for the appellants has further submitted
that it has come in the evidence of the prosecution that at the
place of occurrence, there were 24-25 persons, however none of
the independent witnesses have been examined. It is also
contended that the prosecution story does not corroborate with
the medical evidence. The learned Senior Counsel for the
appellants has referred to the evidence of P.W.9 Dr. Arun Kumar
Singh to submit that no external injury of lathi blow has been
found on the head of the deceased, thus the manner of
occurrence is belied. It is also stated that P.W.10 Dr. S. K.
Paswan has stated that the injuries are within 24 hours, however,
the fact is that the injury was stated to have been inflicted upon
Ram Darsan Sah on 24.01.2007 at about 6:30 am, whereas Dr.
S. K. Paswan had examined the injured person, namely, Ram
Darsan Sah, on 25.01.2007 at 1:45 pm, hence the manner of
occurrence is not proved. In this connection, the learned Senior
Counsel for the appellants has referred to Section 45 of the
Indian Evidence Act and has also referred to a judgment,
rendered by the Hon'ble Apex Court, reported in AIR 1960 SC
706 (Smt. Nagindra Bala Mitra and Anr. vs. Sunil Chandra
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
Roy and Anr.) to submit that value of a medical witness is not
merely a check upon the testimony of eye-witnesses but it is
also an independent testimony because it may establish certain
facts, quite apart from the other oral evidence. The learned
Senior Counsel for the appellants has also submitted that motive
of the occurrence has not been proved. Thus, in nutshell the
evidence of the prosecution witnesses would show that none of
the witnesses are eye-witnesses, hence their evidence cannot be
said to be credible or trustworthy, thus the conviction of the
appellants is perverse. Lastly, it is submitted that even if all the
evidences adduced by the prosecution are accepted to be true on
their face value, it would be apparent that though there is one
injury but 12 accused persons have been convicted and
moreover, the Appellants herein have not been alleged to have
engaged in any specific overtact apart from the fact that the
allegations qua them does not stand substantiated by the medical
evidence, hence the judgment and order of conviction and
sentence is fit to be set aside.
7. Per contra, the learned APP for the State, Sri Dilip
Kumar Sinha, has submitted that one co-convict namely
Laxman Sah had given a lathi blow on the head of the deceased
and the evidence of the Doctor, who has conducted postmortem,
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
i.e. P.W.9 would show that the cause of death is head injury,
hence the offence committed by the co-convict Laxman Sah
stands corroborated by the evidence on record and moreover, the
appellants herein being member of unlawful assembly are guilty
of the offence committed in prosecution of that object. It is
further submitted that as far as lodging of F.I.R. on the basis of
written report dated 24.01.2007 is concerned, there is no lacuna
inasmuch as after the Police received the written report dated
24.01.2007, the same was forwarded to the Office-in-Charge,
Harpur (Adapur) Police Station, whereupon the F.I.R. was
registered on 25.01.2007 at 12:30 hours. It is also submitted that
the present case arises out of case and counter case. It is
contended that the evidence of relatives and family members
cannot be discarded, however the same is required to be
carefully scrutinized and appreciated before any conclusion is
made to rest upon it, regarding the convict / accused in a given
case. Thus, it is submitted that the evidence cannot be
disbelieved merely on the ground that the witnesses are related
to each other or to the deceased and in case, the evidence has a
ring of truth to it, is cogent, credible and trustworthy, it can and
certainly should be relied upon. Reference, in this connection
has been made by the learned APP for the State on a judgment,
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
rendered by the Hon'ble Apex Court in the case of Yogesh
Singh vs. Mahabeer Singh and Others, reported in (2017) 11
SCC 195. It is next contended by the learned APP for the State
that in the present case, the evidence of prosecution witnesses
are credible and trustworthy, hence, fit to be relied upon for the
purposes of upholding the conviction of the appellants. It is also
submitted that in case, direct evidence is available, motive does
not play much role. In this connection, reliance has been placed
on a judgment, rendered by the Hon'ble Apex Court in the case
of Shivaji Chintappa Patil v. State of Maharashtra, reported in
(2021) 5 SCC 626. It is also stated that all the witnesses are eye-
witnesses and it is wrong to say that they are not eye-witnesses,
as would be apparent from their evidence on record. It is also
stated that there is no material contradiction in the evidence led
by the prosecution and the evidence of the prosecution
witnesses are consistent and cogent. As far as the Appellants are
concerned, they are members of unlawful assembly, hence they
have been convicted under Section 302 of the I.P.C. with the aid
of Section 149 of the IPC. Thus, it is submitted by the learned
APP for the State 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
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
conviction and the order of sentence, rendered by the learned
Trial Judge, hence the appeal is fit to be dismissed.
8. 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.
9. P.W.1 Baijnath Sah is cousin brother of the deceased and
he has stated in his deposition that the occurrence dates back to
10-11 months at about 6:00 am in the morning when he was
going for easing himself and when he had reached near the
house of Ram Darshan Sah (P.W.4) then he saw that Shiv Nath
Sah has been surrounded by many people, namely, Laxman Sah,
Sri Lal Sah (Appellant No. 6), Om Prakash Sah, Mahanth Sah,
Vijay Sah, Ajay Sah, Ashok Sah (Appellant No. 4), Awadhesh
Sah (Appellant No. 3), Jawahir Sah, Ram Sevak Sah (Appellant
No. 1), Ramekbal Sah, Madan Sah (Appellant No. 5), Ambika
Sah, Panna Lal Sah, Inar Sah, Sanjay Sah (Appellant No. 2) and
Mahavir Yadav. Thereafter, Mahanth Sah and Awadhesh Sah
(Appellant No. 3) had ordered to kill Shiv Nath, whereupon
Laxman Sah had assaulted the deceased by lathi on his head,
whereafter Shiv Nath Sah had fallen down and then all the
accused persons had assaulted him by lathi. Ram Darshan Sah
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
(P.W.4) had then gone to save the deceased, however he was
assaulted by lathi on his right hand. The occurrence was seen by
Ram Darshan Sah (P.W.4), Manoj Sah, Haridyal Sah (P.W.8),
Mahendra Sah (P.W.5), Vinod Sah, Santosh Sah and Shravan
Sah (P.W.2). The deceased was then taken to hospital at Raxaul
from where he was referred to PMCH, Patna, where he died
after 6 days. He has also stated that the incident took place on
account of quarrel having taken place among the children
earlier. In cross-examination, P.W.1 has stated that Suresh Sah
(P.W.6) had filed the case against 9 accused persons and
Shravan Sah (P.W.2) had filed case earlier against 13 accused
persons. P.W.1 has also stated that prior to the said incident,
there was no dispute in between the deceased and the accused
persons. In his cross-examination, P.W.1 has stated that his
statement was recorded by the police wherein he had stated that
Mahanth Sah and Ramekbal Sah had ordered to kill the
deceased. He has also stated that he had not stated before the
police that at the time of occurrence, he was going towards the
river for easing himself and in his front Shiv Nath Sah was
going. He has also stated that when he reached the place of
occurrence, 20 persons were there and Shiv Nath Sah was
standing and when he saw Shiv Nath he did not find any injury
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
on his body and then in his presence, the accused persons had
assaulted the deceased by lathi, whereafter he had fallen down,
whereupon the accused persons had assaulted Shiv Nath
repeatedly by lathi for 2-4 minutes. He has also stated that
wherever lathi blow was inflicted on the deceased, scar (daag)
had formed. He has also stated that two lathi blows were
inflicted on the head of the deceased, whereafter swelling was
visible and blood had spread over the injury, however the same
was not flowing down. There was sign of lathi blow on the
nose, however P.W.1 has stated that he did not get time to see as
to where all injuries had been inflicted on the deceased. He has
also stated that the deceased had not received injury by falling
on brick but he had become unconscious on account of being
assaulted on his head. P.W.1 has next stated that he does not
remember to have have stated in this statement made in Sessions
Trial No. 936 of 2007 that when he was standing at the place of
occurrence, 8-10 people were also there and Shiv Nath Sah had
fallen down on the southern side of the road. He has also stated
that Manoj, Mahendar Sah (P.W.5) and others had lifted and
taken Shiv Nath Sah to hospital. P.W.1 has next stated that Ram
Darshan (P.W.4) was also assaulted by the accused persons and
at the time he was assaulted, Shiv Nath was standing and he had
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
seen sign of one lathi blow on the hand of Ram Darshan,
however, he cannot say as to how many people had come to
save Ram Darshan. P.W.1 has also stated in his cross-
examination that when Shiv Nath had gone for treatment, Ram
Darshan (P.W.4) had also gone along with him for getting
himself treated and he was treated at Adapur, however, P.W.1
has stated that he had not gone to Adapur. He has also stated that
when the present case was filed by Suresh, he cannot say.
10. P.W.2 Shravan Sah is the brother of the deceased, who has
stated that the occurrence dates back to three years at about 7:00
am in the morning, when he was going for easing himself and
when he had reached at the door of the house of Ram Darshan
Sah then he saw that Shiv Nath Sah had been surrounded by
Mahanth Sah, Ajay Sah, Vijay Sah, Ramekbal Sah, Ram Sevak
Sah (Appellant No. 1), Laxman Sah, Sri Lal Sah (Appellant No.
6), Madan Sah (Appellant No. 5), Panna Lal Sah, Inar Sah,
Sanjay Sah (Appellant No. 2), Jawahir Bhagat, Ashok Sah
(Appellant No. 4) and Awadhesh Sah (Appellant No. 3), totaling
17 in all. Laxman Sah had assaulted Shiv Nath Sah by lathi,
whereafter he had fallen down and then all the accused persons
started assaulting him by lathi. When Ram Darshan Sah (P.W.4)
had arrived there, Awadhesh Sah (Appellant No. 3) had also
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
assaulted him by lathi. He has also reiterated the version of the
prosecution. In cross-examination, he has stated that deceased is
his real brother and he had filed a case at Patna. He has also
stated that the present case was filed by Suresh Prasad against
nine persons, however he had filed case at Patna against 17
persons. In his cross-examination, P.W.2 has also stated that his
statement was recorded by Patna Police, however police of
Harpur Thana had not taken his statement. P.W.2 has further
stated that after the incident, he had gone to the market at
around 10:00 am. P.W.2 has also stated that in his previous
deposition, he has not stated that he had reached his house on
the next day of the incident in the evening as also he had not
stated that on the day on which Suresh had filed the case, he had
gone out. He has also stated that though Shiv Nath was alive,
but he did not get a chance to talk to him and after Shiv Nath
had gone to Patna, he had gone there after 3 days. In paragraph
No. 8 of his cross-examination, P.W.2 has stated that the persons
whose houses are situated near the place of incident are not
witness in the present case. He has also stated that when he
reached at the place of occurrence, there were less than 100
persons present there including Mahendra Sah (P.W.5), Haridyal
Sah (P.W.8), Hira Lal Sah whom he knows. He has further
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
stated in his cross-examination that after he reached at the place
of occurrence, Shiv Nath Sah was lifted, however who had lifted
him, he cannot say. He has also stated that Marshal vehicle had
come after two hours of the occurrence and during the said
period, treatment of Shiv Nath was being done by Dr. Dilip
Kumar, where they had first taken the deceased, however
bandage was not applied to the wounds of Shiv Nath Sah. He
has also stated that Shiv Nath was not taken to the police station
before being taken to Raxaul and he cannot say as to whether
information was given at the police station or not.
11. P.W.3 Kisnawati Devi is the wife of the deceased, who
has stated in her deposition that her husband was killed in the
incident, which dates back to three and a half years at about 6.00
am in the morning when she was going along with her husband
to Gawas Ghar (male sitting place) and when they had reached
near the sitting place of the house of Ram Darshan Sah (P.W.4),
she saw that in the house of Mahavir, all the accused persons
were present including Mahanth Sah, Vijay Sah, Ajay Sah,
Ramekbal Sah, Ram Sevak Sah (Appellant No. 1), Sri Lal Sah
(Appellant No. 6), Om Prakash, Laghu Mahto, Madan
(Appellant No. 5), Mahavir, Ambika Sah, Jawahir Bhagat,
Ashok (Appellant No. 4), Awadhesh (Appellant No. 3), Panna
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
Lal Sah, Inar Sah and Sanjay Sah (Appellant No. 2), totaling 17
in all. Thereafter, Mahanth Sah had ordered to kill the deceased,
whereafter Laxman had assaulted her husband by lathi and then
all the other accused persons had also assaulted her husband by
lathi and fatta, whereafter she had raised alarm and then Suresh
(P.W.6), Shravan (P.W.2), Baijnath (P.W.1), Hiralal, Santosh and
others had arrived, whereafter her husband was taken to Duncan
Hospital for treatment from where he was referred to PMCH,
Patna and after 6-7 days, he had died during the course of
treatment. She had recognized the accused standing in the dock.
P.W.3 has further stated that case was filed by her brother-in-
law, namely Suresh Prasad (P.W.6). She has also stated that
Shravan (P.W.2) is also her brother-in-law and while Suresh
(P.W.6) had filed a case pertaining to murder of her husband at
Harpur Police Station, Shravan Sah (P.W.2) had filed a case for
the said incident at Pirbahore Police Station at Patna. She has
stated that she does not know as to how many accused are
named in the case filed at Patna. She has also stated that police
had recorded her statement after one day of the death of her
husband. P.W.3 has next stated that the place of incident is at a
distance of one kilometer from her house and she cannot state
the name of the neighbours. P.W.3 has further stated in her
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
cross-examination that at the time of occurrence, 26 people were
present there and when she had seen her husband at the time of
the incident he had fallen in the middle of the road, however,
she cannot say how many injuries were inflicted on the body of
her husband. P.W.3 has also stated in her cross-examination that
her husband had not disclosed to her as to how many injuries
were sustained by him on his body and who had assaulted him.
She has also stated that she had not found any injury (tuta futa)
on the body of the deceased. She has stated that after she started
crying, other people had arrived there including Ram Darshan
Sah (P.W.4), Suresh Sah (P.W.6), Baijnath Sah (P.W.1) and
Santosh but she cannot say as to after how much time they had
arrived. In paragraph No. 5 of her cross-examination, P.W.3 has
stated that when she reached near her husband he had fallen
down and had become unconscious.
12. P.W.4 Ram Darshan Sah is an independent witness, who
has stated in his deposition that the incident in question dates
back to three years at about 6:00 am in the morning when he
was at his house and after hearing alarm (hulla), he went outside
and saw that 16-17 persons had surrounded Shiv Nath and were
abusing him. The accused persons were Mahanth Sah, Inar Sah,
Sanjay Sah (Appellant No. 2), Jawahir Sah, Ashok Sah
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
(Appellant No. 4), Vijay Sah, Laxman Sah, Madan Sah
(Appellant No. 5), Ambika Sah, Mahavir Yadav, Srilal Sah
(Appellant No. 6), Om Prakash Sah, Ramekbal Sah and Ram
Sevak Sah (Appellant No. 1). The accused persons were armed
with lathi in their hands and Awadhesh (Appellant No. 3) had
exhorted the other accused persons to assault Shiv Nath Sah,
whereafter Laxman Sah had given lathi blow on the head of
Shiv Nath Sah, whereafter Shiv Nath Sah had fallen down and
then Awadhesh Sah (Appellant No. 3) had hit on the right hand
of P.W.4, leading to his hand being plastered in the hospital.
Shiv Nath was taken to Duncan hospital from where he was
taken to Patna and he died after 4-5 days of treatment. He has
also stated that apart from him, Mahendra Sah (P.W.5), Haridyal
Sah (P.W.8), Ram Ekbal Sah and others had witnessed the
incident. He had recognized the accused persons standing in the
dock. In cross-examination, PW4 has stated that he is an
accused in the counter case and there was no dispute from
before. He has also stated that he had not filed any case after his
hand was fractured, however case was filed on the date of
incident. He has also stated that police personnel had also
examined his injury. P.W.4 has next stated that 15-16 people are
accused and the case was filed by Suresh (P.W.6) and he had not
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
gone with Shiv Nath to get him treated. P.W.4 has further stated
in his cross-examination that after hearing alarm, he had come
out of his house after 10 minutes, where 17-18 persons were
present and Shiv Nath had fallen down on the road on the
southern side and at that time he was conscious, however he did
not talk with Shiv Nath and after 10 minutes of him reaching at
the place of occurrence, Shiv Nath became unconscious. P.W.4
has further stated in cross-examination that blood had not oozed
out of his wound and his hand was plastered two months back,
but he cannot state the name of the Doctor who had plastered his
hand as also he does not recall as to who had treated him.
13. P.W.5 Mahendra Sah is also an independent witness, who
has stated in his deposition that the incident dates back to five
years at about 6:00 am in the morning when he was sitting at his
house and was basking himself in the heat of fire when he heard
hulla (alarm) and then he went to the door of the house of Ram
Darsan (P.W.4) where many people armed with lathi and fatta
were present like Mahanth Sah, Ajay Sah, Vijay Sah, Panna Lal
Sah, Sanjay Sah (Appellant No. 2), Jawahir Sah, Awadhesh Sah
(Appellant No. 3), Ashok Sah (Appellant No. 4), Ram Sevak
Sah (Appellant No. 1), Madan Sah (Appellant No. 5), Ramekbal
Sah, Laxman Sah, Sri Lal Sah (Appellant No. 6) and Mahavir
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
Yadav, totaling to 15-16 persons. P.W.5 has further stated that
Laxman had given a blow on the head of Shiv Nath by lathi and
Awadhesh (Appellant No. 3) had hit on the hand of Ram
Darshan, resulting in fracture of his hand. P.W.5 has also stated
that Shiv Nath was taken to Duncan Hospital from where he
was referred to PMCH, Patna and he died at Patna during the
course of treatment. P.W.5 has stated in his cross-examination
that Police had not made inquiries from him. In paragraph No.
16 of his cross-examination, P.W.5 has stated that when he
reached at the place of occurrence, Shiv Nath had become
unconscious and 30-40 persons including Ram Darshan (P.W.4)
were watching the incident and then P.W.4 was also assaulted
and his wrist had broken. P.W.5 has also stated in his cross-
examination that he was also watching the incident and had
stayed at the place of occurrence for 10 minutes, however when
he reached there, both the injured persons had fallen down on
the road.
14. P.W.6 Suresh Prasad is the informant of the present case
and is also brother of the deceased who has stated in his
deposition that the incident dates back to about five years at
about 6:30 am in the morning when he was sitting at the door of
his house and upon hearing the hulla (alarm), he had gone to the
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
door of the house of Ram Darshan (P.W.4), where he saw that
Shiv Nath had been surrounded by the accused persons namely,
Mahanth, Ajay, Vijay, Panna Lal, Inar Sah, Sanjay Sah
(Appellant No. 2), Jawahir Sah, Awadhesh Sah (Appellant No.
3), Ashok (Appellant No. 4), Laxman Sah, Sri Lal Sah
(Appellant No. 6), Om Prakash Sah, Ambika Sah, Madan Sah
(Appellant No. 5), Ramekbal Sah and Ram Sevak Sah
(Appellant No. 1), totaling 17 in all. These persons were holding
lathi in their hands and were also abusing, whereupon Awadhesh
Sah (Appellant No. 3) and Mahanth Sah had exhorted the
accused persons to kill Shiv Nath, whereafter Laxman Sah had
given three lathi blows on the head of Shiv Nath, leading to him
falling down and then Ram Darshan Sah (P.W.4) had come to
save him but he was assaulted on his hand by lathi by
Awadhesh, however, co-villagers had then arrived resulting in
the accused persons fleeing away. P.W.6 has also stated that he
had given written report of the incident and upon him having
told about the incident to Megnath Prasad, he had scribed the
written report, which was then read over to him and then he had
put his signature over the same, which has already been
exhibited earlier. In cross-examination, P.W.6 has stated that
though he had disclosed name of 17 accused persons, but the
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
person writing the same had not written all the names. He has
also stated that case has been filed against 9 accused persons
and his brother Shravan (P.W.2) had also filed a case against 7
persons. P.W.6 has further stated that in his written report, he
had named 17 accused persons, however name of none of the
accused was deleted. It is next stated that the written report was
written in the village, whereafter the same was given to the
Officer-in-Charge of the Police Station and before giving the
written report, the Police had arrived at the place of occurrence
for making inquiry. P.W.6 has also stated that the Police had
come in the village at around 10-11 hours and had stayed at the
village for 1½ - 2 hours, however, during the said period no
witness had given any statement. P.W.6 has further stated that
when the Police had arrived in the village, the deceased was not
present in the village, however he has again stated that one hour
after arrival of the Police, his brother was taken for treatment.
The Police Officer had examined the injuries on the body of the
deceased and had sent him for treatment. In paragraph No. 18 of
his cross-examination, P.W.6 has stated that he had given written
report to the Police Station at 2:00-3:00 hours. He has also
stated that he had got the written report scribed by Megnath
Prasad, whereafter the same was read over to him and then he
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
had made his signature over the same. P.W.6 has also stated that
when the statement of Shravan (P.W.2) was recorded at Patna,
he was not present there. He has also stated that after filing the
case he did not come to know as to against how many accused
persons the case has been lodged, however, he has stated that
the case is going on against 17 accused persons. P.W.6 has
further stated that Ram Darshan (P.W.4) is his cousin brother.
P.W.6 has next stated in his cross-examination that when he saw
Shiv Nath, he was standing and upon him seeing Shiv Nath at
the inception, he did not find any sign of injury on the body of
Shiv Nath and he had stayed at the place of occurrence for 5
minutes, during which period his brother had fallen down,
whereafter he was lifted and taken to hospital. In paragraph No.
31 of his cross-examination, P.W.6 has stated that the deceased
had fallen on the road and he had seen sign of injuries on his
body as also swelling had erupted at various places on the body
of the deceased and all the injuries were inflicted by lathi. In
paragraph No. 36 of his cross-examination, P.W.6 has stated that
blood had not dropped at the place of occurrence. In paragraph
No. 37 of his cross-examination, P.W.6 has stated that he had
filed the case after coming back from the Hospital, where the
Police had not reached and his brother had stayed at Raxaul
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
hospital for one and a half hours, where treatment was carried
out and then he was referred to PMCH, Patna.
15. P.W.7 Ganesh Ram is the Investigating Officer of the
present case and he has stated in his deposition that on
24.01.2007, he was posted as Officer-in-Charge, Harpur Police
Station and in the night at about 9:00 pm he had received
written report of Suresh Prasad, which was forwarded to the
Officer-in-Charge, Adapur Police Station for registration of
formal F.I.R., which was registered under Sections 147, 148,
149, 341, 323, 325, 307, 379 and 504 of the IPC and then he had
assumed the investigation of the case. P.W.7 has also stated that
he had recorded the re-statement of the informant at 11:15 hours
and had then proceeded to the place of occurrence, where he had
recorded the statement of the injured, namely Ram Darshan Sah
(P.W.4) as also had issued requisition for medical examination
of Ram Darshan Sah. P.W.7 has also referred to the place of
occurrence and described the same. P.W.7 has stated that he had
recorded the statement of various witnesses, namely, Baijnath
Prasad (P.W.1), Ramekbal Sah, Santosh Sah, Ramji Sah and
Vinod Sah on the same day. On 26.01.2007, he had recorded the
statement of wife of the injured Shiv Nath Sah, namely
Kisnawati Devi (P.W.3), Baban Prasad, Hiralal Sah and Haridyal
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
Sah (P.W.8). On 31.01.2007, during the course of investigation,
P.W.7 received information that the injured Shiv Nath Sah had
died at PMCH, Patna on 30.01.2007, whereafter he had filed a
petition for adding section 302 of the IPC on 05.02.2007. On
12.02.2007, postmortem report of the deceased, Shiv Nath Sah
was received by him and on 13.02.2007, he had received the
fardbayan of Shravan Sah (P.W.2), which was recorded at
PMCH, Patna, by Sub-Inspector of Police, B.N. Singh. P.W.7
has further stated that he had filed charge-sheet against the
accused persons under Sections 147, 148, 149, 341, 323, 325
and 302 of the IPC. P.W.7 has also stated that he has also filed
another charge-sheet against the accused persons under the same
Section. In cross-examination, P.W.7 has stated that counter case
bearing Case No.14 of 2007 had also been filed and he had not
conducted the investigation of the said case however, charge-
sheet was submitted in the said case. P.W.7 has next stated that
written report is the basis of F.I.R. lodged pertaining to Adapur
P.S. Case No.15 of 2007, wherein nine persons have been
arrayed as accused and after recording of the fardbayan of
Shravan Sah, the number of accused person had increased.
P.W.7 has also stated that he had filed final form qua the accused
namely Awadhesh Sah (Appellant No. 3) and Sanjay Sah
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
(Appellant No. 2). P.W.7 has next stated that Madan Sah
(Appellant No. 5), Ashok Sah (Appellant No. 4) and Sri Lal Sah
(Appellant No. 6) are non F.I.R. named accused persons. P.W.7
has further stated in his cross-examination that he had received
information about the incident at 9:00 pm in the night on
24.01.2007 and the incident had taken place at 6:30 am in the
morning of 24.01.2007. In paragraph No. 14 of his cross-
examination, P.W.7 has stated that he had recorded the statement
of Ram Darshan (P.W.4) at the place of occurrence at 11:15
hours in the night. He has also stated that he had not recorded
the statement of Kisun Sah and had also not recorded the
statement of the deceased till the deceased was alive nor he had
tried to meet him. PW-7 has further stated in his cross-
examination that witnesses, namely Baijnath Prasad (P.W.1),
Ram Ekbal Sah, Santosh Sah, Ramji Sah and Binod Sah had
told him about other accused person having assaulted the
deceased by lathi. He has further stated that witness Baijnath
Prasad (P.W.1) has stated before him that Laxman had given two
lathi blows on the head of the deceased. He has also stated that
Ram Ekbal Sah has stated before him that Mahanth Sah had
assaulted the deceased with lathi with the intention to kill him,
however, it had hit the deceased over his nose, whereafter
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
Laxman had assaulted the deceased on his head by lathi. P.W.7
has also stated that witness Ramji Sah had stated before him that
Laxman Sah, Shrilal Sah, Madan Sah, Ram Ekbal Sah, Mahanth
Sah, Ajay Sah, Vijay Sah, Sanjay Sah, Inar Sah and Ram Sevak
Sah had fled away before he had arrived at the place of
occurrence.
16. P.W.8 Harilal Sah has stated in his deposition that he does
not know anything about the incident, hence he was declared
hostile. He has also stated in his cross-examination that at the
time of occurrence, he was not in the village and had gone
outside to earn his livelihood.
17. PW.9 Dr. Arun Kumar Singh is the Doctor, who had
conducted the postmortem of the dead body of the deceased,
namely, Shiv Nath Sah and he has stated in his deposition that
on 31.01.2007, he was posted as Tutor at Patna Medical College
and on the same day, he had conducted the postmortem
examination on the dead body of the deceased, Shiv Nath Sah at
about 1:00 pm.
"External appearance
Average built rigor-mortis present all over. Foley's
Catheter present. Right eye blacken.
Following ante-mortem, external and internal injuries
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
were found on the dead body of the deceased:-
No. 1- One healed abrasion 1 ½" x ½" on front of nose.
On dissection, there was hematoma under scalp in both
frontal, both parietal and both temporal region on head.
There was comminuted fracture of left frontal, left
temporal, left parietal, right parietal and right temporal
bones. There was separation of calomel suture also.
There was extradural hematoma 4 ½" x 3 ½" on left
frontal, left temporal, left parietal region of brain. Brain
was congested. Heart contained little blood on right side,
left empty. Stomach contained greenish fluid about 100
ml. All other viscera were found congested. Bladder
empty.
Opinion
(1). Time since death 06 to 24 hours from the time of
postmortem examinations.
(2). Cause of death head injury.
(3). Nature of violence hard and blunt substance and its
impact."
P.W.9 has further stated that the Postmortem report was
written by him and bears his signature, which he has identified.
PW-9 has proved the postmortem report, which has been written
by him in his hand writing and he has identified his signature,
which has been marked as Exhibit-1. In his cross-examination,
PW-9 has stated that he had found one abrasion 1½'' x ½" on
front portion of the nose of the deceased, however, he had not
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
found any other external injury on the body of the deceased. He
has also stated that if assault is made by lathi over the head, it is
not necessary that external injury would be inflicted, however,
sometimes it can also appear. He has also stated that in case of
excessive hair on the head, external injury is not seen after
resolution of hematoma. He has next stated that it can take up to
one month for hematoma to resolve. P.W.9 has also stated that
hematoma can also be formed upon falling on a hard substance.
18. P.W.10 Dr. S. K. Paswan is the Doctor, who had examined
the injured witnesses Ram Darshan Sah (P.W.4) and he has
stated in his deposition that on 25.01.2007, he was posted at
Primary Health Centre, Adapur and on that day at 1:45 pm, he
had examined Ram Darshan Sah and had found the following
injuries:-
"(1). Swelling 3" x 2" near lower end of lower ulna.
X-Ray A.P. & lateral view shows evidence of lower end of ulna
bone.
(2). Age of injuries- within 24 hours.
(3). Nature of injuries- Grievous in nature, hard and blunt
substance."
P.W.10 has identified the injury report, which he has
stated is in his writing as also he has identified his signature
made over the same and the same has been marked as Exhibit
No. 2. In his cross-examination, P.W.10 has stated that he had
not taken the thumb impression or signature of the deceased on
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
the injury report. P.W.10 has also stated that falling on the hand
may also lead to such injuries. P.W.10 has next stated that in his
injury report, there is no reference to X-Ray plate since X-ray
technician does not give any report and the said X-Ray is not
present before him today.
19. P.W.11 Anil Kumar is an advocate clerk, who has proved
the FIR of Adapur P.S. Case No.15 of 2007 and has stated that
the written report, leading to registration of formal F.I.R., has
already been exhibited as Exhibit-1 in the original case and the
inquest report has been exhibited as Exhibit-2 in the original
case. He has also identified the certified copy of the same,
which has already been exhibited in the original case.
20. After closing the prosecution evidence, the learned Trial
Court recorded the statement of the appellants on 24.07.2015
under Section 313 of the Cr.P.C. for enabling them to personally
explain the circumstances appearing in the evidence against
them, however they claimed themselves to be innocent,
nonetheless, in reply to a question being put to them as to what
they have to say in their defense, they answered that they have
to say nothing. The defense had then examined four defense
witnesses, which is being cursorily discussed hereinafter.
21. D.W.1 Nagendar Kishore Verma is a compounder, who
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
has stated that on 22.01.2007, he was the compounder of Dr.
Shyam Lal Das, Orthopedician and the said Doctor had died in
the year 2008. He has further stated that on 22.01.2007, Doctor
had examined Awadhesh Sah, who had pain in his back and he
has proved the prescription, which is stated to be in the writing
of the Doctor and the same has been marked as Exhibit-A.
22. D.W.2 Madhusudan Yadav is a shopkeeper at Nepal, who
has stated in his deposition that he is carrying on business in
Nepal, since 20 years and in the month of January 2007, Sanjay
Sah (Appellant No. 2), Prakash Parit and Mukesh Mandal were
working as staff at his shop, his shop opens daily at 6:00 am in
the morning and remains open till 10:00 pm in the night and the
said staff used to stay there and eat there. He has also stated that
Sanjay Sah (Appellant No. 2) was working at his shop in the
year 2002 and in the month of January 2007, Sanjay Sah
(Appellant No. 2) was at his shop and had not gone to his house.
He has also stated that afterwards, he came to know that in the
village of Sanjay Sah, murder has taken place and he has been
implicated in the said case. In his cross-examination, D.W.2 has
stated that Sanjay Sah (Appellant No. 2) is not his co-villager
and though he maintains register of his employee, but he has not
brought the same to the Court.
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
23. D.W.2 (should be D.W.3) Om Prakash Parit @ Jay
Prakash Parit has stated in his deposition that in the year 2007,
he was working in the shop of Madhusudhan Yadav, situated at
Putli Bazaar, Narayan Ghat (Nepal), during the period of
Saraswati Puja. He has also stated that Mukesh Mandal and
Sanjay Sah (Appellant No. 2) also used to work with him, they
used to stay with him and Sanjay (Appellant No. 2) had not
gone to his house either in the month of January-February or
during the period of six months before and after the said
months. He has stated in his cross-examination that Sanjay Sah
(Appellant No. 2) is not his co-villager and he cannot say that
Sanjay Sah used to go home.
24. D.W.3 (should be D.W.4) Mukesh Mandal has stated in
his deposition that he was working in the shop of Madhusudhan
Yadav in the year 2004, which was in the name and style of
Vaishnav Traders and along with him Sanjay Sah (Appellant No.
2), Mukesh Mandal and Om Prakash Pandit were also working
at the said shop. In the month of January 2007, during the
festival of Saraswati Puja, Sanjay Sah (Appellant No. 2) was
present at Narayan Ghat and he had gone to his house six
months before Saraswati Puja. In his cross-examination, he has
stated that he does not have any documentary proof to the effect
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
that he was working at Narayan Ghat in the year 2004 and he
cannot say as to who was working prior to 2004 at the shop in
question.
25. The trial Court, upon appreciation, analysis and scrutiny
of the evidence adduced at the trial, has found the aforesaid
appellants guilty of the offence and has sentenced them to
imprisonment and fine, as noted above, by its impugned
judgment and order.
26. A bare perusal of the evidence of the prosecution reveals
that on 24.1.2007 at 6:30 am in the morning, the elder brother of
Suresh Prasad (the informant), namely, Shiv Nath Prasad
(deceased), was coming after easing himself and when he had
reached at the door of the house of Ram Darshan Sah (P.W.4),
the appellants No. 1 to 3 and other accused persons had
surrounded him, who were sitting there from before, whereafter
Laxman Sah (Co-convict in Sessions Trial No. 403/2009) had
given lathi blows on the forehead of the deceased Shiv Nath
Prasad resulting in him sustaining injuries and falling down on
the ground, whereafter the other accused persons had also
assaulted the deceased Shiv Nath Prasad with lathi and fatta
leading to the deceased Shiv Nath Prasad becoming
unconscious, whereafter Ram Darshan Sah (P.W. 4) had
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
intervened to save the deceased, however, the accused person,
namely, Awadhesh Sah (Appellant No. 3) had given a lathi blow
on his right hand leading to his right hand being fractured. In
fact, other family members and co-villagers had also arrived at
the place of incident and had watched the occurrence. The
deceased Shiv Nath Prasad was taken to Duncan Hospital at
Raxaul, but he was referred to PMCH, Patna, where he died
during the course of treatment after 5-6 days of the incident. At
this juncture, it would be relevant to mention that P.W.1
Baijnath Prasad, P.W. 2 Shravan Sah, P.W.3 Kisnawati Devi,
P.W. 4 Ram Darshan Sah, P.W. 5 Mahendra Sah and P.W. 6
Suresh Prasad are the eye-witnesses to the aforesaid occurrence
and they have deposed consistently with regard to the over tact
engaged in by the appellants herein and others, which has also
stood the test of cross-examination. It is a well-settled law that
minor discrepancies, 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
adduced at the trial to establish the guilt of the appellants.
27. 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
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
the Doctor has categorically stated in his evidence that the cause
of death is head injury caused by hard and blunt substance.
28. In fact, the appellants have not been able to show any
material contradiction 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.7 Ganesh Ram
(Investigating Officer) to elicit his response, however, a bare
perusal of the evidence of P.W.7 would show that as far as P.W.
1 is concerned, no contradiction could be extracted, inasmuch as
P.W.7 has stated in his evidence that P.W.1 had told him that
Laxman Sah had inflicted 2 lathi blows on the head of the
deceased and other accused persons had also assaulted him by
lathi and fatta. However, statements of other prosecution
witnesses, made under Section 161 Cr.P.C., were not put to P.W.
7 (Investigating Officer) to elicit his response. Thus, considering
the ocular evidence of the prosecution witnesses, which has
stood the test of cross-examination, in our opinion, minor
discrepancies in their evidence cannot affect the prosecution
case, hence, the prosecution witnesses do not appear to be
untrustworthy.
29. Now coming to the submissions made by the learned
Senior Counsel for the appellants, we find that he has argued
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
vehemently that the written report dated 24.1.2007, submitted
by the informant leading to lodging of the FIR on 25.1.2007 is
not the earliest version since firstly, the same is not in his
writing and secondly, the scribe of the said written report,
namely Meghnath Prasad has not been examined by the
prosecution, apart from the fact that the written report dated
24.1.2007 does not even contain any recital to the effect that the
FIR was read over to the informant, who had understood the
same and had then put his signature after finding the same to be
correct. We find that unnecessary efforts have been made to
create a lacuna, but the fact remains that the informant, namely
Suresh Prasad (P.W.6), has stated in his evidence that the written
report was though scribed by Meghnath Prasad, but the same
was read over to him and then after understanding the same, he
had put his signature over the same, which has duly been
identified. Another aspect of the matter is that no question has
been put to the witness, especially to the informant i.e. P.W.6 in
cross-examination regarding untruthfulness of the written report
and that the same is fabricated, hence the unchallenged part of
the evidence of a witness has 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 and circumstance, the
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
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
& Others vs. State of Haryana, reported in (2013) 14 SCC 420,
as also to a judgment rendered by the Hon'ble Apex Court in the
case of Laxmibai vs. Bhagwantbuva, reported in (2013) 4 SCC
97, paragraph no. 40 whereof is reproduced herein below:-
"40. Furthermore, there cannot be any dispute with
respect to the settled legal proposition, that if a party
wishes to raise any doubt as regards the correctness of
the statement of a witness, the said witness must be given
an opportunity to explain his statement by drawing his
attention to that part of it, which has been objected to by
the other party, as being untrue. Without this, it is not
possible to impeach his credibility. Such a law has been
advanced in view of the statutory provisions enshrined in
Section 138 of the Evidence Act, 1872, which enable the
opposite party to cross-examine a witness as regards
information tendered in evidence by him during his initial
examination-in-chief, and the scope of this provision
stands enlarged by Section 146 of the Evidence Act,
which permits a witness to be questioned, inter alia, in
order to test his veracity. Thereafter, the unchallenged
part of his evidence is to be relied upon, for the reason
that it is impossible for the witness to explain or
elaborate upon any doubts as regards the same, in the
absence of questions put to him with respect to the
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
circumstances which indicate that the version of events
provided by him is not fit to be believed, and the witness
himself, is unworthy of credit. Thus, if a party intends to
impeach a witness, he must provide adequate opportunity
to the witness in the witness box, to give a full and proper
explanation. The same is essential to ensure fair play and
fairness in dealing with witnesses."
30. We also find that as far as lodging of FIR on the basis of
written report dated 24.1.2007 is concerned, there is no lacuna,
inasmuch as after the police had received the written report
dated 24.1.2007 at 9:00 pm, the same was forwarded to the
Officer-in-Charge, Harpur (Adapur) Police Station, whereupon
the FIR was immediately registered on 25.1.2007 at 12:30 hours
and then, the same was sent to the Court on 27.1.2007. Thus, we
find that the argument advanced by the learned Senior Counsel
for the appellants that the earliest version of the incident in
question has been withheld merits no consideration.
31. The learned Senior Counsel for the appellants has next
tried to impeach the credibility of the prosecution witnesses and
has submitted that they are actually not eye-witnesses, inasmuch
as they had arrived at the place of occurrence much after the
occurrence had taken place. It has been submitted that as far as
P.W. 3 Kisnawati Devi is concerned, she has stated in her
evidence that after she raised hulla, Suresh (P.W.6), Shravan
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
(P.W.2), Baijnath (P.W.1), Santosh, etc. had arrived there. It has
also been submitted that P.W.3 has stated in her evidence that
when she had reached the place of occurrence, her husband was
conscious but he did not tell her as to who had assaulted him,
meaning thereby that she was also not present at the time her
husband was being assaulted. It is also submitted that most of
the witnesses have been examined by the police after lapse of
considerable time of the occurrence and moreover, the
prosecution story does not corroborate with the medical
evidence. It is also submitted that the motive of the occurrence
has not been proved, thus, in nutshell, the case of the appellants
is that the evidence of the prosecution witness would show that
none of them are eye-witnesses, hence, their evidence cannot be
said to be credible or trustworthy, thus, the conviction of the
appellants is fit to be set aside. We find from a bare perusal of
the evidence of the prosecution evidences that minor
discrepancies in their evidence cannot affect the prosecution
case as we have already come to a conclusion that the
prosecution witnesses do not appear to be untrustworthy. As far
as P.W. 3 is concerned, she has stated in her evidence that while
she was going along with her husband to Gawas Ghar and when
they had reached near the sitting place of the house of Ram
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
Darshan Sah (P.W.4), she had seen the appellants whereafter,
Laxman Sah and other accused persons including the appellants
had assaulted her deceased husband, which has also stood the
test of cross-examination, thus, minor contradiction would not
impact the case of the prosecution. As far as P.W. 6 i.e. the
informant, Suresh Prasad, is concerned, he has also stated in his
evidence that he had witnessed the incident and had seen the
appellants assaulting the deceased Shiv Nath, which has also
stood the test of cross-examination. As regards P.W.2 Shravan
Sah, we find that he has consistently stated in his evidence that
after he was coming back upon easing himself and had reached
the house of P.W. 4, the appellants and others had caught hold of
the deceased Shiv Nath and then Laxman Sah had hit on the
head of the deceased, whereafter the other accused persons
including the Appellants had assaulted the deceased. Thus, we
find that the appellants have failed to show that P.W.1, P.W.2,
P.W.3, P.W.4, P.W.5 and P.W.6 are not eye-witnesses to the
incident in question. In fact, all the prosecution witnesses have
deposed consistently and there is no material contradiction in
their evidence, apart from the fact that they have also stated in
their evidence to be eye-witness to the alleged occurrence,
hence, we find that the evidence of prosecution witnesses are
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
credible and trustworthy being consistent and cogent, thus fit to
be relied upon to establish the guilt of the appellants. It is a
well-settled law that in case, direct evidence is available, motive
does not play much role. We also find that the witnesses have
consistently deposed that the accused Awadesh Sah had
assaulted P.W. 2 Ram Darshan Sah on his right hand leading to
his right hand being fractured. We further find that the ocular
evidence is fully supported by the medical evidence.
32. Yet another aspect of the matter, which has been
canvassed by the learned Senior Counsel for the appellants, is
that though there is one external injury on the body of the
deceased, but 12 accused persons have been convicted and even
Laxman Sah had not engaged in repeated blow, hence he had no
intention to kill the deceased, thus the present case would fall
within the ambit of culpable homicide not amounting to murder.
In this regard, we find upon going through the evidence of P.W.
8 Dr. Arun Kumar Singh, who had conducted the postmortem
examination of the dead body of the deceased Shiv Nath Sah
that though externally one healed abrasion 1 ½" x ½" was found
on front of nose, however on dissection, there was hematoma
under scalp in both frontal, both parietal and both temporal
region on head. There was comminuted fracture of left frontal,
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
left temporal, left parietal, right parietal and right temporal
bones. There was extradural hematoma 4 ½" x 3 ½" on left
frontal, left temporal, left parietal region of brain and brain was
congested. Thus several grievous injuries were found on
dissection.
In fact, P.W.8 has opined that the cause of death is head
injury caused by hard and blunt substance. We also find that the
prosecution witnesses have consistently deposed that 2-3 lathi
blows were inflicted by Laxman Sah resulting in the deceased
sustaining injuries and falling down on the ground, whereafter
all the appellants and other accused persons had assaulted the
deceased by lathi and fatta. Thus, we find that on account of
Laxman Sah having repeatedly assaulted the deceased by lathi
on his forehead resulting in hematoma and fracture at several
places on the head / skull, as is apparent from the postmortem
report, the deceased Shiv Nath Prasad died, hence the deceased
was not only assaulted brutally by Laxman Sah but also by
others including the appellants. Nonetheless, we find that it is a
settled law that in cases where a large number of accused
persons constituting an unlawful assembly are alleged to have
attacked and killed one or more persons, it is not necessary that
each of the accused should inflict fatal injuries or any injury at
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
all and by invoking Section 149, the members of an unlawful
assembly can be punished on the ground of vicarious liability
even though they are not accused of having inflicted fatal
injuries. Reference, in this connection, be had to a judgment,
rendered by the Hon'ble Apex Court in the case of Nitya Nand
vs. State of Uttar Pradesh & Anr., reported in (2024) 9 SCC
314, paragraphs no. 41 to 48 are reproduced herein below:-
"41. Section 141 IPC defines "unlawful assembly". It
says an assembly of five or more persons is designated as
unlawful assembly if the common object of the persons
composing that assembly is to commit an illegal act by
means of criminal force.
42. As per Section 148 IPC which deals with rioting
armed with deadly weapon, whoever is guilty of rioting,
being armed with a deadly weapon or with anything
which, used as weapon of offence, is likely to cause death,
shall be punished with imprisonment of either description
for a term which may extend to three years, or with fine,
or with both. "Rioting" is defined in Section 146IPC. As
per the said definition, whenever force or violence is used
by an unlawful assembly, or by any member thereof, in
prosecution of the common object of such assembly, every
member of such assembly is guilty of the offence of
rioting.
43. This brings us to the pivotal section which is
Section 149IPC. Section 149 IPC says that every member
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
of an unlawful assembly shall be guilty of the offence
committed in prosecution of the common object. Section
149 IPC is quite categorical. It says that if an offence is
committed by any member of an unlawful assembly in
prosecution of the common object of that assembly, or
such as the members of that assembly knew to be likely to
be committed in prosecution of that object, every person
who, at the time of committing of that offence, is a
member of the said assembly; is guilty of that offence.
Thus, if it is a case of murder under Section 302IPC, each
member of the unlawful assembly would be guilty of
committing the offence under Section 302 IPC.
44. In Krishnappa v. State of Karnataka [Krishnappa v.
State of Karnataka, (2012) 11 SCC 237 : (2013) 1 SCC
(Cri) 621] , this Court while examining Section 149IPC
held as follows : (SCC p. 243, paras 20-21)
"20. It is now well-settled law that the provisions of
Section 149IPC will be attracted whenever any
offence committed by any member of an unlawful
assembly in prosecution of the common object of
that assembly, or when the members of that
assembly knew that offence is likely to be committed
in prosecution of that object, so that every person,
who, at the time of committing of that offence is a
member, will be also vicariously held liable and
guilty of that offence. Section 149IPC creates a
constructive or vicarious liability of the members of
the unlawful assembly for the unlawful acts
committed pursuant to the common object by any
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
other member of that assembly. This principle ropes
in every member of the assembly to be guilty of an
offence where that offence is committed by any
member of that assembly in prosecution of common
object of that assembly, or such members or
assembly knew that offence is likely to be committed
in prosecution of that object.
21. The factum of causing injury or not causing
injury would not be relevant, where the accused is
sought to be roped in with the aid of Section
149IPC. The relevant question to be examined by the
court is whether the accused was a member of an
unlawful assembly and not whether he actually took
active part in the crime or not."
45. Thus, this Court in Krishnappa case [Krishnappa
v. State of Karnataka, (2012) 11 SCC 237 : (2013) 1 SCC
(Cri) 621] held that Section 149 IPC creates a
constructive or vicarious liability of the members of the
unlawful assembly for the unlawful acts committed
pursuant to the common object by any other member of
that assembly. By application of this principle, every
member of an unlawful assembly is roped in to be held
guilty of the offence committed by any member of that
assembly in prosecution of the common object of that
assembly. The factum of causing injury or not causing
injury would not be relevant when an accused is roped in
with the aid of Section 149 IPC. The question which is
relevant and which is required to be answered by the
court is whether the accused was a member of an
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
unlawful assembly and not whether he actually took part
in the crime or not.
46. As a matter of fact, this Court in Vinubhai
Ranchhodbhai Patel v. Rajivbhai Dudabhai Patel
[Vinubhai Ranchhodbhai Patel v. Rajivbhai Dudabhai
Patel, (2018) 7 SCC 743] has reiterated the position that
Section 149IPC does not create a separate offence but
only declares vicarious liability of all members of the
unlawful assembly for acts done in common object. This
Court has held :
"20. In cases where a large number of accused
constituting an "unlawful assembly" are alleged to
have attacked and killed one or more persons, it is
not necessary that each of the accused should inflict
fatal injuries or any injury at all. Invocation of
Section 149 is essential in such cases for punishing
the members of such unlawful assemblies on the
ground of vicarious liability even though they are
not accused of having inflicted fatal injuries in
appropriate cases if the evidence on record justifies.
The mere presence of an accused in such an
"unlawful assembly" is sufficient to render him
vicariously liable under Section 149IPC for causing
the death of the victim of the attack provided that the
accused are told that they have to face a charge
rendering them vicariously liable under Section
149IPC for the offence punishable under Section
302IPC. Failure to appropriately invoke and apply
Section 149 enables large number of offenders to get
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
away with the crime.
22. When a large number of people gather together
(assemble) and commit an offence, it is possible that
only some of the members of the assembly commit
the crucial act which renders the transaction an
offence and the remaining members do not take part
in that "crucial act" -- for example in a case of
murder, the infliction of the fatal injury. It is in those
situations, the legislature thought it fit as a matter of
legislative policy to press into service the concept of
vicarious liability for the crime. [Ramu
Gope v. State of Bihar, 1968 SCC OnLine SC 74,
para 5 : AIR 1969 SC 689, p. 692, para 5:"5. ...
When a concerted attack is made on the victim by a
large number of persons it is often difficult to
determine the actual part played by each offender.
But on that account for an offence committed by a
member of the unlawful assembly in the prosecution
of the common object or for an offence which was
known to be likely to be committed in prosecution of
the common object, persons proved to be members
cannot escape the consequences arising from the
doing of that act which amounts to an offence."]
Section 149IPC is one such provision. It is a
provision conceived in the larger public interest to
maintain the tranquillity of the society and prevent
wrongdoers (who actively collaborate or assist the
commission of offences) claiming impunity on the
ground that their activity as members of the
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
unlawful assembly is limited.
34. For mulcting liability on the members of an
unlawful assembly under Section 149, it is not
necessary that every member of the unlawful
assembly should commit the offence in prosecution
of the common object of the assembly. Mere
knowledge of the likelihood of commission of such
an offence by the members of the assembly is
sufficient. For example, if five or more members
carrying AK 47 rifles collectively attack a victim and
cause his death by gunshot injuries, the fact that one
or two of the members of the assembly did not in fact
fire their weapons does not mean that they did not
have the knowledge of the fact that the offence of
murder is likely to be committed."
47. It is true that there are certain lacunae in the
prosecution. The scribe Kuldeep was not examined.
Similarly, the younger brother Laxmi Narain was not
examined though it has come on record that Laxmi
Narain was killed in the year 1993 and in that case one of
the accused is the appellant himself. It is also true that
neither any country-made pistol was recovered nor any
cartridge, empty or otherwise, recovered. However, the
appellant has been roped in with the aid of Section
149IPC. Therefore, as held by this Court in Yunis v. State
of M.P. [Yunis v. State of M.P., (2003) 1 SCC 425 : 2003
SCC (Cri) 341] , no overt act is required to be imputed to
a particular person when the charge is under Section
149IPC; the presence of the accused as part of the
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
unlawful assembly is sufficient for conviction. It is clear
from the evidence of PW 1 and PW 2 that the appellant
was part of the unlawful assembly which committed the
murder. Though they were extensively cross-examined,
their testimony in this regard could not be shaken.
48. In view of what we have discussed above, we have
no doubt in our mind that the trial court had rightly
convicted the appellant under Section 148IPC read with
Sections 302/149IPC and that the High Court was
justified in confirming the same. The question framed in
para 16 above is therefore answered in the affirmative."
33. We thus find from the evidence of the prosecution
witnesses that all the accused persons including the appellants
herein were members of unlawful assembly and the offence in
question was primarily committed by the co-convict Laxman
Sah (convicted in Sessions Trial No. 403/2009) leading to death
of Shiv Nath Prasad as also by the other accused persons
including the Appellants herein, who are members of the
unlawful assembly, in prosecution of the common object of that
assembly, hence all the accused persons including the
appellants, who were member of the said unlawful assembly at
the time of commission of the offence in question, are definitely
guilty of that offence i.e. the one under Section 302 of the IPC
by invocation of Section 149 of the IPC. Thus, even though the
deceased has died primarily on account of fatal blow inflicted
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
by Laxman Sah, nonetheless the appellants and other accused
persons are liable to be convicted under Section 302 of the IPC
with the aid of Section 149 IPC, keeping in view the principle
laid down by the Hon'ble Apex Court in the case of Nitya Nand
(supra). Now coming to the conviction of the appellants under
Section 147 IPC, this Court finds that rioting has been defined
under Section 146 of the IPC, which reads as follows:-
"146. Rioting-Whenever force or violence is used by an
unlawful assembly, by any members would be, in
prosecution of the common object of such assembly, every
member of such assembly is guilty of the offence of
rioting."
Section 141 IPC defines unlawful assembly as an
assembly of five or more persons, if the common object of the
persons composing that assembly is to commit an illegal act by
means of criminal force. Section 147 provides for punishment of
rioting. This Court finds, considering the evidence led by the
prosecution that the appellants have rightly been convicted
under Section 147 IPC. We also find that the present case will
not fall within the ambit of Section 304 Part-II of the IPC since
Laxman Sah had given repeated lathi blows on the head of the
deceased leading to his subsequent death and as far as the
appellants are concerned, they being member of unlawful
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
assembly, have rightly been convicted under Section 302 of the
IPC with the aid of Section 149 of the IPC.
34. Considering the facts and circumstances of the present
case and the evidence, which has been brought on record to
prove the allegations levelled against the appellants beyond pale
of any reasonable doubt as well as considering the credibility
and trustworthiness of the evidence of the prosecution, which
has not been discredited during the course of cross-examination
coupled with the postmortem report and for the reasons
mentioned hereinabove, we find that there is no reason to create
any doubt in our minds. We have examined the materials
available on record and do not find any apparent error in the
impugned judgment of conviction and order of sentence, hence,
the same does not require any interference.
35. Accordingly, the present appeal i.e. Criminal Appeal (DB)
No. 1136 of 2016 stands dismissed.
36. In view of the fact that the present appeal has stood
dismissed, the bail bonds of the Appellants No. 1, 2 and 4 to 6,
who were granted bail during the pendency of the present appeal
by an order dated 21.12.2016, 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
Patna High Court CR. APP (DB) No.1136 of 2016 dt.06-03-2025
Appellant No. 3, namely, Awadhesh Sah, is concerned, he is
already in custody, hence, he is directed to serve the remaining
sentence.
(Mohit Kumar Shah, J)
I agree.
Nani Tagia, J:
(Nani Tagia, J)
Ajay/-
AFR/NAFR NAFR
CAV DATE 10.02.2025
Uploading Date 06.03.2025
Transmission Date 06.03.2025
