Patna High Court
Mohammed Ajmal vs The State Of Bihar on 21 March, 2025
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.168 of 2020
Arising Out of PS. Case No.-34 Year-2018 Thana- AMDABAD District- Katihar
======================================================
Mohammed Ajmal, Son of Mohammad Ainuddin, Resident of Village - Balua,
Gopalpur Sij Tola, P.S.- Amdabad, District - Katihar, Bihar
... ... Appellant
Versus
1. The State of Bihar
2. Md. Hakim Son of Late Abdul Rauf Resident of Village - Balua, P.S.-
Amdabad, District - Katihar, Bihar
3. Md. Ishaque Son of Late Abdul Rauf Resident of Village - Balua, P.S.-
Amdabad, District - Katihar, Bihar
4. Md. Manir Son of Late Abdul Rauf Resident of Village - Balua, P.S.-
Amdabad, District - Katihar, Bihar
5. Md. Najrul @ Bhola Son of Late Abdul Rauf Resident of Village - Balua,
P.S.- Amdabad, District - Katihar, Bihar
6. Md. Sagir Son of Md. Rafiq Resident of Village - Balua, P.S.- Amdabad,
District - Katihar, Bihar
... ... Respondents
======================================================
with
CRIMINAL APPEAL (SJ) No. 449 of 2020
Arising Out of PS. Case No.-34 Year-2018 Thana- AMDABAD District- Katihar
======================================================
MD. ISHHAQUE @ ISHHAQUE ALI Son of Abdul Rauf Resident of
Village- Balwa, P.S.- Amdabad, District- Katihar.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
with
CRIMINAL APPEAL (SJ) No. 469 of 2020
Arising Out of PS. Case No.-34 Year-2018 Thana- AMDABAD District- Katihar
======================================================
HAKIM @ MD. HAKIM S/o Late Abdul Rauf Resident of Village- Balua,
P.S.- Amdabad, Distt- Katihar.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
with
Patna High Court CR. APP (DB) No.168 of 2020 dt.21-03-2025
2/44
CRIMINAL APPEAL (SJ) No. 473 of 2020
Arising Out of PS. Case No.-34 Year-2018 Thana- AMDABAD District- Katihar
======================================================
MD. MANIR S/o Md. Rashid Resident of Village- Balua, P.S.- Amdabad,
Distt- Katihar
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
with
CRIMINAL APPEAL (SJ) No. 611 of 2020
Arising Out of PS. Case No.-34 Year-2018 Thana- AMDABAD District- Katihar
======================================================
NAJRUL HAQUE @ MD. NAJRUL @ BHOLA Son of Late Abdul Rauf
Resident of Village - Balua, P.S.- Amdabad, District - Katihar.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
with
CRIMINAL APPEAL (SJ) No. 629 of 2020
Arising Out of PS. Case No.-34 Year-2018 Thana- AMDABAD District- Katihar
======================================================
MD. SAGIR Son of Md. Rafique Resident of Village - Balua, P.S.- Amdabad,
District - Katihar.
... ... Appellant
Versus
THE STATE OF BIHAR
... ... Respondent
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 168 of 2020)
For the Appellant/s : Mr. Surendra Kumar Singh, Advocate
Ms. Tulika Singh, Advocate
For the Respondent/s : Mr. Shashi Bala Verma, APP
(In CRIMINAL APPEAL (SJ) No. 449 of 2020)
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
For the Respondent/s : Mr. Bipin Kumar, APP
For the Informant : Mr. Surendra Kumar Singh, Advocate
Ms. Tulika Singh, Advocate
(In CRIMINAL APPEAL (SJ) No. 469 of 2020)
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
For the Respondent/s : Mr. Bipin Kumar, APP
For the Informant : Mr. Surendra Kumar Singh, Advocate
Ms. Tulika Singh, Advocate
(In CRIMINAL APPEAL (SJ) No. 473 of 2020)
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
For the Respondent/s : Mr. Bipin Kumar, APP
For the Informant : Mr. Surendra Kumar Singh, Advocate
Ms. Tulika Singh, Advocate
Patna High Court CR. APP (DB) No.168 of 2020 dt.21-03-2025
3/44
(In CRIMINAL APPEAL (SJ) No. 611 of 2020)
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
For the Respondent/s : Mr. Bipin Kumar, APP
For the Informant : Mr. Surendra Kumar Singh, Advocate
Ms. Tulika Singh, Advocate
(In CRIMINAL APPEAL (SJ) No. 629 of 2020)
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
For the Respondent/s : Mr. Bipin Kumar, APP
For the Informant : Mr. Surendra Kumar Singh, Advocate
Ms. Tulika Singh, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE SOURENDRA PANDEY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 21-03-2025
These appeals have been filed against the judgment
dated 03.12.2019 and order dated 11.12.2019 passed in Sessions
Trial No. 247 of 2018, arising out of Amdabad P.S. Case No. 34 of
2018 (hereinafter referred to as the 'impugned judgment/order') by
learned District & Sessions Judge, Katihar (hereinafter referred to
as the 'learned trial court').
2. By the impugned judgment, the learned trial court
held respondent nos. 2 to 6 (Cr. Appeal (DB) No. 168 of 2020) not
guilty for the offence under Sections 504, 302/149 of the Indian
Penal Code (in short 'IPC') and acquitted them accordingly but
found them guilty and convicted them for the offences under
Sections 147, 149, 341, 325, 304 Part II of the IPC, further
respondent no.5 has been found guilty and separately convicted for
the offence under Section 148, 326 and 307 IPC. The respondent
Patna High Court CR. APP (DB) No.168 of 2020 dt.21-03-2025
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no. 2 to 6 have been sentenced to undergo three years rigorous
imprisonment for the offence under Section 147 IPC, one month
simple imprisonment for the offence under Section 341 IPC, three
years rigorous imprisonment and fine of Rs. 3,000/- for the offence
under Section 325 IPC and ten years rigorous imprisonment and
fine of Rs. 10,000/- each for the offence under Section 304 Part
II/149 IPC. In default of payment of fine they have been ordered to
undergo one year simple imprisonment. Respondent no. 5 has been
further sentenced to undergo three years rigorous imprisonment for
the offence under Section 148 IPC and five years rigorous
imprisonment and fine of Rs. 5,000/- for the offence under Section
307 IPC. In default of payment of fine he has been ordered to
undergo six months simple imprisonment. Since the respondent
no.5 was sentenced under Section 307 IPC, learned trial court did
not deem it necessary to sentence him under Section 326 IPC. It
was ordered that all the sentences shall run concurrently.
3. The appellant in Cr. Appeal (DB) No. 168 of 2020 is
aggrieved by the impugned judgment whereby the respondent nos.
2 to 6 have been acquitted for the offences under Section 504,
302/149 IPC and convicting the respondent nos. 2, 3, 4 and 6
guilty for lesser offence under Sections 147, 341, 325 and 304 part
II IPC and the respondent no.5 guilty only under Sections 147,
Patna High Court CR. APP (DB) No.168 of 2020 dt.21-03-2025
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341, 325, 304 Part II, 148, 326 and 307 IPC. This appellant is also
aggrieved by the impugned order awarding the nominal/lesser
punishment/sentence to respondent nos. 2 to 6.
4. Vide order dated 06.09.2024, Cr. Appeal (DB) No.
168 of 2020 was ordered to be tagged with Cr. Appeal (SJ) No.
629 of 2020, Cr. Appeal (SJ) No. 611 of 2020, Cr. Appeal (SJ)
No.449 of 2020, Cr. Appeal (SJ) No.473 of 2020 and Cr. Appeal
(SJ) No.469 of 2020 preferred by the respondent nos. 2 to 6
against the impugned judgment of conviction and sentence.
Prosecution case
5. The informant, namely, Md. Ajmal in his fardbeyan
recorded on 03.03.2018 at about 07:30 PM at PHC, Amdabad,
District- Katihar alleged that on the same day at about 03:30
Hours, after offering namaz, he along with his uncle Mamiruddin
had come to the Amdabad market for buying vegetables. After
buying vegetables, both of them were returning home at about
06:00 PM in the evening and when they reached near the field
west to Karwala More, (1) Md. Ishaq, (2) Md. Raseed, (3) Md.
Hakim, (4) Md. Nazrul, (5) Md. Mazir, (6) Alauddin, (7) Sageer,
(8) Md. Rafiq, who were already present there, surrounded the
informant and his uncle, then Md. Raseed instigated others to kill
them. On his instigation, Md. Nazrul @ Bhola assaulted the
Patna High Court CR. APP (DB) No.168 of 2020 dt.21-03-2025
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informant on his head by a sword due to which he became
seriously injured. In the meantime, Md. Ishaq also started
assaulting the informant on his left leg by rod due to which his leg
got fractured and blood started oozing out. Md. Mazir and Md.
Hakim also started assaulting the informant's uncle by their
swords due to which also he became seriously injured. Md. Sageer,
Md. Rafiq and Alauddin all started recklessly assaulting the
informant's uncle on his leg due to which his both legs were
fractured and started bleeding. All the accused persons fled away
leaving both the injured persons in near-dead condition. The
informant alleged that they had prior enmity also. The reason of
the alleged incident is the earlier ongoing land dispute between the
parties.
6. On the basis of this written application, a First
Information Report being Amdabad P.S. Case No. 34 of 2018
dated 03.03.2018 has been registered under Sections 341, 323,
324, 325, 307, 504/34 IPC against accused persons, namely, (1)
Md. Ishaque, (2) Md. Rashid, (3) Mr. Hakim (4) Md. Nazrul, (5)
Md. Manir, (6) Allauddin, (7) Md. Sagir and (8) Md. Rafique.
After completion of investigation, police submitted charge-sheet
bearing number 92/2018 dated 08.06.2018 under Sections 147,
148, 149, 341, 325, 326, 307, 302/504 IPC against (1) Md. Manir,
Patna High Court CR. APP (DB) No.168 of 2020 dt.21-03-2025
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(2) Md. Ishaque, (3) Md. Hakim, (4) Md. Nazrul @ Bhola and (5)
Sagir keeping the investigation pending against other accused
persons. Upon submission of charge-sheet, the learned Magistrate
took cognizance vide order dated 20.06.2018 of the offences under
Sections 147, 148, 149, 341, 325, 326, 307, 302 and 504 IPC and
the case was committed to the court of Sessions on 27.06.2018
where Sessions Trial No. 247 of 2018 was registered on
10.07.2018
. Vide order dated 05.11.2018 charges were framed
under Section 307, 302, 325, 326, 504, 149 and 147 IPC and
explained to them to which they denied.
7. During trial, the prosecution produced as many as
eleven witnesses and proved some documentary evidences. The
full description of the witnesses and the documents proved on
behalf of the prosecution are being provided hereunder for a ready
reference:-
List of Prosecution Witnesses
PW-1 Md. Ajmal
PW-2 Rafique
PW-3 Md. Jiyaul Haque
PW-4 Arsad Ali
PW-5 Akmal Hussain
PW-6 Jinnat Ali
PW-7 Dr. S.M. Thakur
PW-8 Dr. Ramrekha Suman
PW-9 Dr. Dayanand Ray
PW-10 Dr. Mahtabuddin
PW-11 ASI Harishankar Singh
Patna High Court CR. APP (DB) No.168 of 2020 dt.21-03-2025
List of Prosecution Exhibits
Ext.-01 Signature of the PW-1 Md. Ajmal
in Fardbayan.
Ext.-2 Sign of Dr. S.M. Thakur on
postmortem report
Ext.-3 Postmortem report
Ext.-2/1 Sign of Dr. Dayanand Ray on
postmortem report
Ext.-4 Injury report of Ajmal Hussain
Ext.-5 Injury report of Manirul Haque
Ext.-6 Fardbeyan
Ext.-7 Registration of FIR on fardbeyan
Ext.-8 Formal FIR
Ext.-9 Arrest memo of Md. Manir
Ext.-10 Photocopy of Inquest Report
Ext.-11 Application for adding Section
302 of IPC
Ext.-12 Certified copy of FIR of Amdabad
Ext.12/1 Certified copy of Charge Sheet of
Amdabad P.S. Case No. 88 of
Ext.12/2 Certified copy of Order sheet of
Amdabad P.S. Case No. 88 of
Ext. 13 Certified copy of FIR of Amdabad
Ext. 13/1 Certified copy of charge sheet of
Amdabad P.S. Case No. 76 of
Ext.14 Certified copy of FIR of Amdabad
Ext.14/1 Certified copy of charge sheet of
Amdabad P.S. Case No. 35 of
Ext. 14/2 Certified copy of cognizance order
of Amdabad P.S. Case No. 35 of
Ext. 15 Certified copy of FIR of Amdabad
Patna High Court CR. APP (DB) No.168 of 2020 dt.21-03-2025
Ext. 15/1 Certified copy of charge sheet of
Amdabad P.S. Case No. 54 of
Ext. 16 Certified copy of FIR of Amdabad
Ext. 16/1 Certified copy of Charge sheet of
Amdabad P.S. Case No. 61 of
Ext.17 Certified copy of FIR of Amdabad
Ext. 17/1 Certified copy of Charge sheet of
Amdabad P.S. Case No. 42 of
Ext. 17/2 Certified copy of cognizance order
of Amdabad P.S. Case No. 42 of
Ext. 18 Certified copy of Informatory
List of Exhibits on behalf of Defence
Ext.-A Certified copy of FIR of
Amdabad P.S. Case No. 35 of
Ext.-A/1 Certified copy of Charge Sheet
No. 263/2018 of Amdabad P.S.
Ext.-B Certified copy of FIR of
Amdabad P.S. Case No. 86 of
Ext.-B/1 Certified copy of Charge Sheet
of Amdabad P.S. Case No. 86 of
Ext.-B/2 Certified copy of cognizance
order of Amdabad P.S. Case No.
86 of 2017
Ext.-C Certified copy of FIR of
Amdabad P.S. Case No. 195 of
Ext.-C/1 Certified copy of charge sheet of
Amdabad P.S. Case No. 195 of
Patna High Court CR. APP (DB) No.168 of 2020 dt.21-03-2025
Ext.-C/2 Certified copy of cognizance
order of Amdabad P.S. Case No.
195 of 2017
Ext.-D Certified copy of FIR of
Amdabad P.S. Case No. 145 of
Ext.-D/1 Certified copy of charge sheet of
Amdabad P.S. Case No. 145 of
Ext.-D/2 Certified copy of cognizance
order of Amdabad P.S. Case No.
145 of 2018
Ext.-E Certified copy of judgment
dated 26.11.2008 passed in G.R.
Ext.-F Certified copy of judgment
dated 23.04.2008 passed in G.R.
Ext.-G C.C. of Sale Deed No. 1024
dated 24.01.1988
Ext.-H C.C. of Sale Deed No. 12393
dated 17.07.2014
Ext.-I C.C. of Sale Deed No. 2603
dated 20.02.2018
Ext.-J C.C. of Sale Deed No. 16386
dated 01.10.2018
Findings of the Learned Trial Court
8. Learned trial court found from the record that PWs-2,
3, 4 and 5 are the related and interested witnesses so there
evidences are required to be considered with more care and
circumspection. PWs-2, 3, 4, 5 and 6 have deposed as eyewitness
to the occurrence. Learned trial court did not find any discrepancy
in the evidences of PWs-2, 3, 4, 5 and 6 on the point of causing
grievous injury by means of sword on the head of Md. Ajmal by
Patna High Court CR. APP (DB) No.168 of 2020 dt.21-03-2025
accused Nazrul and further causing grievous injury by means of
rod to Maniruddin and Md. Ajmal by other accused persons as
evidences of these witnesses get corroborated from the evidence of
the informant Md. Ajmal (PW-1). Learned trial court found that
PW-6 is an independent witness and evidence of this witness also
found corroboration from the medical evidence of PW-8 and PW-
10.
9. The learned trial court took the evidence of PW-1,
PW-4, PW-6 and PW-11 (the I.O.) for establishing the place of
occurrence and found that there is consistency in the evidence of
these witnesses and came to the conclusion that place of
occurrence has been proved from the evidence of these witnesses.
10. The learned trial court, after perusal of the records
found that land dispute is an admitted fact between the parties but
it is a natural and double-edged weapon which can be a motive for
the crime as also the ground for false implication of the accused
persons. Presence of PW-6 at the place of occurrence was found
natural being the resident of the place of occurrence and his
evidence corroborates the evidence of PWs-2, 3, 4 and 5. Learned
trial court found that no evidence has been produced by the
defence regarding the suggestion given to the prosecution
witnesses in respect of injury received by Md. Ajmal and
Patna High Court CR. APP (DB) No.168 of 2020 dt.21-03-2025
Maniruddin (since deceased) in a motorcycle accident and that
injury proved fatal to Maniruddin. The learned trial court found the
prosecution witnesses to be the eyewitnesses and did not find any
material to raise doubt over their evidences and in this regard, the
argument advanced by the defence that the accused persons have
been falsely implicated in this case due to enmity has been held
baseless.
11. On perusal of the records, learned trial court found
from the evidence of informant (PW-1) that accused Ishaque
assaulted on his right leg with a rod, whereas the medical witness
(PW-10) deposed that informant received injury on his left leg.
Learned trial court did not take it as a discrepancy citing the
interest of justice because the eyewitnesses have deposed in their
evidence that informant was assaulted by the accused persons on
his leg by rod. Learned trial court found from the evidence of
medical witness (PW-8) that in the postmortem report of
Maniruddin, the death was found due to some embolism as a result
of multiple major bone fracture by physical assault and the same
found corroboration from the evidence of PW-1 to PW-6.
12. Learned trial court after analysing the evidence
available on the record came to the conclusion that the allegation
of assault by the accused persons by means of sword and rod in
Patna High Court CR. APP (DB) No.168 of 2020 dt.21-03-2025
furtherance of common object after surrounding Md. Ajmal and
his uncle Maniruddin due to enmity in the background of land
dispute, injuring them badly as a result of which Maniruddin died
has been proved by the prosecution by the evidence of PW-1 to
PW-6 duly supported by the medical witnesses (PW-8 and PW-10).
13. So far as the accusation for the offence under
Section 302 IPC is concerned, the learned trial court found that
Maniruddin died during treatment due to grievous injuries received
on his both legs in the occurrence after nineteen days in the
hospital which shows that the accused persons had no intention to
cause death of Maniruddin and the prosecution has failed to prove
the charge under Section 302 IPC against the accused but they
have proved the charge under Section 304 Part-II IPC and
accordingly, the learned trial court held the respondent nos. 2 to 6
in Cr. Appeal (DB) No. 168 of 2020 not guilty for the offence
under Sections 504, 302/149 IPC and further held them guilty for
the offence under Sections 147, 149, 341, 325 and 304 Part-II IPC
and further respondent no.5 has been separately convicted for the
offence under Section 148, 326 and 307 IPC.
14. This appeal has been preferred by the informant
being aggrieved by the judgment of the learned trial court holding
Patna High Court CR. APP (DB) No.168 of 2020 dt.21-03-2025
that the charges under Sections 504, 302/149 IPC were not proved
by the prosecution beyond all reasonable doubts. According to the
appellant, the learned trial court has wrongly held the respondent
nos. 2, 3, 4 and 6 guilty for lesser offences under Sections 147,
341, 325 and 304 Part-II of the IPC and also held the respondent
no. 5 guilty only under Sections 147, 341, 325, 304 Part-II, 148,
326 and 307 of the IPC and awarded nominal/lesser/punishment
sentence.
15. Learned counsel for the appellant submits that Md.
Ajmal (PW-1) has specifically stated that all the accused persons
had assaulted the informant as well as his uncle with sword and
iron rod, whereafter his uncle succumbed to his injuries during
treatment. He also identified the accused persons in the court.
16. Rafique (PW-2) has deposed before the court that
when he heard loud noises, he went to the place of occurrence. He
had found Rafique, Rashid, Saqeem, Hakeem, Ishaque, Nazrul,
Manir, Sagir and Alauddin indulged in assaulting the informant
and his uncle with sword and iron rod. He has also stated that there
were injuries on the head and legs of the informant and that the
accused Nazrul had hit on the head of the informant with sword
due to which he got severe injuries and was admitted in the
hospital where the uncle of the informant died.
Patna High Court CR. APP (DB) No.168 of 2020 dt.21-03-2025
17. Md. Jiaul Haque (PW-3) had also gone to the place
of occurrence in between 5:30-6:00 PM. He has claimed to have
seen the accused persons assaulting the informant as well as his
uncle with sword and iron rod.
18. Arshad Ali (PW-4) has supported the prosecution
case. He had seen all the accused persons assaulting the informant
and his uncle.
19. Jinnat Ali (PW-6) has stated in his deposition that
when he was going from the Karbala More then he saw that all the
accused persons came out and then started assaulting the informant
and his uncle with iron rod and sword. He has stated that the
accused Nazrul hit on informant's head with sword and then
accused Sageer hit informant on his leg and all the accused
assaulted his uncle Maniruddin due to which they got severe
injuries.
20. Dr. Ramrekha Suman (PW-8) had conducted the
postmortem on the dead body of the victim Maniruddin. PW-8 has
stated that he was posted at Sadar Hospital and had examined
Maniruddin. He had found the injuries on the left tibia and fibula.
There was a nailing of left leg with stitched wound of fracture and
P.O.P. plaster was applied on right leg. On opening of plaster,
stitched wound with fracture of right tibia and fibula bone was
Patna High Court CR. APP (DB) No.168 of 2020 dt.21-03-2025
found, a cannula over right forearm and chest leads over chest wall
were present.
21. Dr. S. M. Thakur (PW-7) and Dr. Dayanand Ray
(PW-9) were the Medical Officers at Sadar Hospital on 22.03.2018
and they have stated that under their supervision, Dr. Ramrekha
Suman (PW-8) had conducted the postmortem of the deceased
victim Maniruddin at 9:00 PM on which both of them had signed.
The signatures of PW-7 and PW-9 have been marked as Exhibit '2'
and Exhibit '2/1' respectively.
22. Hari Sankar Singh (PW-11) is the main Investigating
Officer of the case who has stated that on 03.03.2018, he was
present in Amdabad Police Station as Sub-Inspector. He has
identified the fardbeyan of the informant which has been marked
Exhibit '6'. The pagination done on the fardbeyan is Exhibit '7'
and formal FIR along with signature has been marked as Exhibit
'8'. On 03.03.2018, he took charge of the investigation of the case
and he issued requisition for the treatment of informant and
Maniruddin. He inspected the place of occurrence on 04.03.2018
and recorded the statement of the witnesses Md. Rafique, Md.
Arshad and Md. Jinnat and according to their testimony, the place
of occurrence of the offence is west side of Karbala More in the
baigan field/plot of Rajkumar. PW-11 had arrested accused Md.
Patna High Court CR. APP (DB) No.168 of 2020 dt.21-03-2025
Manir and recorded his defence statement. On 16.03.2018, he
received the injury report of the informant and has further stated
that on 21.03.2018, Maniruddin died during treatment in the
hospital and as such on 23.03.2018, he gave an application before
the Magistrate to add Section 302 IPC in the FIR which has been
marked Exhibit '11'.
23. Dr. Mahtabuddin (PW-10) was the Medical Officer
posted at Primary Health Centre who had examined the injury of
the informant on 03.03.2018. He had found three injuries on the
body of the informant which were grievous in nature caused by
sharp and blunt weapon. He had conducted the examination of
Manirul Haque and had found (i) Compound fracture of right tibia
and fabula and (ii) Compound fracture of left tibia and fabula.
There was an abrasion on the left shoulder. The injury reports of
the informant and Manirul Haque have been identified by this
witness which have been marked as Exhibit '4' and Exhibit '5'
respectively.
24. Learned counsel for the informant-appellant has
submitted that from the evidences on the record it has been clearly
proved that the accused persons were involved in the commission
of the offence. The witnesses have supported the prosecution case
and withstood the test of cross-examination. It is submitted that the
Patna High Court CR. APP (DB) No.168 of 2020 dt.21-03-2025
prosecution has been able to prove its case beyond all reasonable
doubt.
25. Learned counsel submits that the learned trial court
could not appreciate that respondent nos. 2 to 6 are the desperate
criminals of the locality and they are involved in number of
criminal cases. It is stated that Md. Hakim, Md. Ishaque and
Nazrul @ Bhola are accused in seven cases, details of which have
been given in the report dated 06.03.2018 submitted by ASI of
Amdabad Police Station. It is, however, not denied that this report
was not exhibited in course of trial and no separate charge was
framed on this ground and accused had no opportunity to explain it
during their 313 CrPC statement. It is his submission that the
respondent nos. 2 to 6 are guilty of offences under Section 302 of
the IPC.
26. The respondent nos. 2 to 6 in Criminal Appeal (DB)
No. 168 of 2020 are the appellants in Criminal Appeal (DB) No.
449 of 2020, Criminal Appeal (DB) No. 469 of 2020, Criminal
Appeal (DB) No. 473 of 2020, Criminal Appeal (DB) No. 611 of
2020 and Criminal Appeal (DB) No. 629 of 2020.
27. Mr. Ajay Kumar Thakur, learned counsel for the
appellants, assisted by Mr. Bipin Kumar, learned Advocate and Mr.
Patna High Court CR. APP (DB) No.168 of 2020 dt.21-03-2025
Ritwik Thakur, learend Advocate, has led the arguments on behalf
of the appellants. Ms. Shashi Bala Verma, learned Additional
Public Prosecutor for the State has opposed these appeals on
behalf of the State. Mr. Surendra Kumar Singh, learned Advocate
representing the appellant in Criminal Appeal (DB) No. 168 of
2020 has appeared for the informant in these appeals in opposition.
28. Learned counsel for the convicts-appellants have
assailed the impugned judgment of conviction and order of
sentence. It is submitted that the learned trial court could not take
notice of the material contradictions in the prosecution evidence. It
is submitted that in his evidence, the informant (PW-1) has stated
that the occurrence has taken place due to land dispute. According
to him, he and his uncle Md. Maniruddin (deceased) were
returning from Amdabad Market. When they reached in the field
downwards to Karbala More then the accused persons surrounded
them. They had concealed themselves and were sitting in a
planned manner. Rashid ordered to kill him and his uncle,
whereafter all the accused persons started assaulting both of them.
It is pointed out that according to this witness, Ishaque had
assaulted him on his right leg and he started bleeding but from the
injury report (Exhibit '4') of this witness, it would appear that the
doctor had not found any injury on the right leg of this witness. It
Patna High Court CR. APP (DB) No.168 of 2020 dt.21-03-2025
is pointed out that the doctor had found (i) cut injury on the vault
of the skull 6 cm x 1 cm x bone deep, (ii) Compound left tibia and
fibula fracture and (iii) swelling on left forearm. It is pointed out
from paragraph '3'of his deposition that with respect to the said
occurrence, Tara Khatoon, wife of Nazrul, had lodged a case and
this witness has stated that in said case, his father and uncle are the
accused. It is further pointed out that prior to this occurrence, Md.
Hakim had lodged a case against the brother of this witness and
others which is Amdabad P.S. Case No.195 of 2017. This witness
has further admitted that prior to this occurrence, Bibi Angura had
lodged a case against his father and other persons giving rise to
Amdabad P.S. Case No.86 of 2017. PW-1 has admitted that there
are about 10 cases between the parties.
29. It is pointed out that the informant (PW-1) has given
the description of the place of occurrence and according to him,
there is a baigan field in the north of the place of occurrence, a
wheat field in the west and maize field in the east but he did not
know the name of the owner of the field. According to him, the
place of occurrence is 'aar' (ridge) of the field, which is 1-2 feet
in width. The occurrence had taken place in the baigan field and in
the middle of the 'aar' (ridge) blood had fallen in huge quantity.
According to him, police had seized the blood stained soil but that
Patna High Court CR. APP (DB) No.168 of 2020 dt.21-03-2025
was not sealed. The seized blood soaked soil was not produced in
court. He has stated that in his village there are 800-900 houses of
Muslims but all are not his relatives. Md. Rafique who is witness
in this case is his fufera bhai, Arshad is his fufa, witness Jinnat is
his fufera bhai, Md. Akmal is his own brother and Md. Jiaul is his
cousin brother. Learned counsel for the appellants has submitted
that it is evident from the deposition of PW-1 that with respect to
the same occurrence, Tara Khatun, wife of Nazrul had lodged a
case. The FIR of the said case has been brought on record by the
defence which has been marked Exhibit 'A'. The certified copy of
the charge sheet of the Amdabad P.S. Case No. 35 of 2018 has also
been proved as Exhibit 'A/1' on behalf of the defence. It is
submitted that the parties are highly inimical, they are from a
common ancestor and they have been fighting on account of land
dispute. All the prosecution witnesses are closely related to the
informant, therefore, their evidences were required to be examined
with more circumspection and care.
30. Learned counsel submits that according to PW-1,
after the occurrence had taken place, villagers had called the police
whereafter both of them were taken to the Amdabad Hospital,
from Amdabad Hospital they were brought to Sadar Hospital and
then their treatments were done in Katihar Medical College. He
Patna High Court CR. APP (DB) No.168 of 2020 dt.21-03-2025
was treated for 21 days in the hospital whereas his uncle died in
course of treatment. It is submitted that who had informed the
police has not been revealed in course of investigation and trial.
Who carried the PW-1 and his uncle to Primary Health Centre has
also not been disclosed and the said police officer has not been
examined. The prosecution story about how the injured persons
were brought to the Primary Health Centre changed in course of
trial.
31. It is further submitted that PW-1 has admitted in
paragraph '28' that he had seen Nazrul (one of the appellants)
being taken to Amdabad Primary Health Centre. The defence
suggested this witness that he had assaulted Nazrul for which his
wife had lodged a case and only in order to save himself, the
present case was lodged. The defence further suggested this
witness that he and his uncle got injuries in a motorcycle accident
and taking advantage of the said injury, he had lodged a false case.
This defence was denied by the witness. Learned counsel,
however, submits that the learned trial court could not appreciate
the material contradiction in the evidence of PW-1 and other
witnesses. Md. Rafique (PW-2) is not an eyewitness to the
occurrence. He went to the place of occurrence after hearing hulla
that Maniruddin and Ajmal are being assaulted by son of Rauf
Patna High Court CR. APP (DB) No.168 of 2020 dt.21-03-2025
Maulvi while returning from market after purchase of vegetables.
It is pointed out that according to PW-1, the place of occurrence is
situated at a distance of one kilometer from the market and the
Amdabad Police Station is also situated at a distance of one
kilometer. The claim of PW-2 that he could reach the place of
occurrence and had seen that the accused persons were assaulting
Ajmal and Maniruddin by sword and rod cannot be believed. This
witness has stated in paragraph '3' that children had brought
khatia (cot) from the house on which Ajmal and Maniruddin were
taken to Amdabad Primary Health Centre. This witness has stated
that in between his house and the place of occurrence, house of
several persons are situated. In between his house and place of
occurrence, the house of Khushal, Arshad, Bhotu and Ishu are
situated.
32. Learned counsel submits that despite this fact that
there are houses of several persons, no independent witness has
supported the prosecution case. It is thus submitted that in absence
of an independent witness, conviction on the basis of closely
related, interested and inimical witnesses in the present case would
not be safe.
33. Learned counsel submits that according to PW-2,
blood had fallen on the earth at the place of occurrence and in the
Patna High Court CR. APP (DB) No.168 of 2020 dt.21-03-2025
baigan field also soil were soaked with blood but the evidence of
the I.O. (PW-11) would show that he had visited the place of
occurrence on 04.03.2018 in the morning hour and had recorded
the statement of Md. Rafique, Md. Arshad and Md. Jinnat. He had
inspected the place of occurrence. In course of his inspection, the
I.O. had not found any article of the accused persons. He had not
found any sign of struggle and fight. He had also not found any
sign of movement of footmark at the place of occurrence. I.O.
(PW-11) has stated that at the place of occurrence, no plant was
trampled or broken. He did not find any maize field nearby the
place of occurrence. He had not found any bag or a bag containing
vegetables at the place of occurrence. He has further stated in
paragraph '32' that on the date of occurrence itself, he had issued
requisition for injury of the accused Nazrul @ Bhola. He was also
injured in the said occurrence. On the strength of the statement of
the I.O. (PW-11), learned counsel for the appellants submits that in
this case, the I.O. had not found any sign of occurrence at the
given place of occurrence and the prosecution has suppressed the
injury of accused Nazrul @ Bhola, therefore, it will prove fatal to
the prosecution.
34. Learned counsel for the convicts-appellants has
assailed the impugned judgment referring the deposition of PW-2
Patna High Court CR. APP (DB) No.168 of 2020 dt.21-03-2025
in paragraph '53' where he has stated that the baigan field, which
is the place of occurrence, had been irrigated by water and it was a
kutchi land in which baigan plants were broken but there was no
footmark. It is submitted that the evidence of PW-2 on this point is
not believable as it is neither corroborated by the evidence of PW-
1 nor by the evidence of PW-11. The defence again suggested PW-
2 that Ajmal and Maniruddin both had fallen down from
motorcycle in which they had received injuries but because of
prior enmity, they had falsely implicated the appellants.
35. Learned counsel further submits that Jiaul Haque
(PW-3) has stated that his house is situated at a distance of 500
meters from the place of occurrence. He heard hulla in the village
that Maniruddin and Ajmal are being assaulted, whereafter he ran
and reached the place of occurrence. It is submitted that this
witness is also not an eyewitness. He reached the place of
occurrence only after hearing hulla and his house is situated at a
distance of 500 meters, which is half kilometer from the place of
occurrence. This witness is the cousin brother of the informant.
His attention was also drawn towards his earlier statement made
before police in which he had not taken name of Sakim. This
witness denied his previous statement made before police but the
I.O. (PW-11) has stated in paragraph '21' and '22' of his evidence
Patna High Court CR. APP (DB) No.168 of 2020 dt.21-03-2025
that neither this informant (PW-1) nor any other witness had taken
the name of Sakim as an accused. Thus, it is evident that Sakim
was involved in this case at a later stage with an afterthought.
Referring to the evidence of PW-3, learned counsel submits that
according to him, the baigan field was not irrigated by water and it
was a dry land. This is in complete conflict with the evidence of
PW-2.
36. Learned counsel has further submitted that PW-4 is
not an eyewitness of the occurrence. He claims to have reached the
place of occurrence at first. He had also reached the place of
occurrence only after hearing hulla in his house. This witness has
stated that on the date of occurrence, he had not seen Nazrul in
injured condition, but the I.O. has clearly stated in his deposition
that Nazrul was also injured in the said occurrence. According to
this witness, Maniruddin (the deceased) is his cousin brother. It is
thus submitted that this witness has though tried to depose as an
eyewitness of the occurrence, but from his evidence it is clear that
he was not present at the place of occurrence.
37. Akmal Hussain (PW-5) is admittedly not an
eyewitness to the occurrence. He was in Delhi at the time of
occurrence.
Patna High Court CR. APP (DB) No.168 of 2020 dt.21-03-2025
38. Jinnat Ali (PW-6) has stated that he was at Karbala
More at the time of occurrence and had seen the occurrence. In his
cross-examination, this witness has stated that he resides outside in
Delhi and Punjab and he comes home only once or twice in a year.
He could not say the description of the land for which the parties
have a dispute. He had gone to meet Manir after 4-5 days of the
occurrence whereafter he had never gone. Learned counsel for the
appellants has submitted that this witness is mamera bhai of Ajmal
(PW-1). He has stated that he had not seen any injury on the body
of Ajmal @ Bhola and this shows that he is not speaking the truth.
39. Dr. S. M. Thakur (PW-7) has proved the postmortem
report of the deceased Maniruddin which has been marked Exhibit
'2'. He has stated in his cross-examination that there is no sign of
physical assault except fracture. He has also stated that fracture
mentioned in the postmortem report may be caused due to
motorcycle accident.
40. Dr. Ramrekha Suman (PW-8) has stated that he had
conducted the postmortem in observation of Dr. S.M. Thakur and
Dr. D. N. Ray on the dead body of Maniruddin. According to him,
the cause of death was cardiorespiratory arrest due to some
embolism as a result of multiple major bone fracture by physical
assault. In his cross-examination, he has stated that stitched wound
Patna High Court CR. APP (DB) No.168 of 2020 dt.21-03-2025
assigned that the person was brought after treatment. He has stated
that embolism may be caused during treatment and has further
stated that such type of fracture may be caused due to motorcycle
accident.
41. Dr. Dayanand Ray (PW-9) was also a part of the
team of the doctors who conducted the postmortem. He has stated
in the postmortem report that there is no sign of physical assault
except fracture. He has also stated that fracture mentioned in the
postmortem report may be caused due to motorcycle accident.
42. Dr. Mahtabuddin (PW-10) had examined Ajmal
Hussain (PW-1) and found three injuries on his body. He had also
examined Manirul Haque (deceased). Both the injury reports have
been marked Exhibit '4' and '5' respectively. This witness has also
stated that injuries caused on the person of injured Manirul Haque
and Ajmal Hussain may be caused due to motorcycle accident.
Learned counsel for the appellants has heavily relied upon the
evidence of these doctors to make a submission that the defence
taken by the accused persons are getting support from the evidence
of the doctors. Learned counsel has relied upon the judgment of
the Hon'ble Supreme Court in the case of Anand Ramachandra
Chougule vs. Sidarai Laxman Chougala reported in (2019) 8
SCC 50, Nallabothu Ramulu v. State of A.P. reported in (2014)
Patna High Court CR. APP (DB) No.168 of 2020 dt.21-03-2025
12 SCC 261 and Mohan Lal v. State of Rajasthan reported in
(1999) 9 SCC 209 . It is his submission that the learned trial court
has disbelieved major portion of the prosecution case. The place of
occurrence has not been duly proved. The injury of accused has
not been proved by prosecution and the manner of occurrence has
also not been proved, therefore, the learned trial court has
committed error in convicting the persons for the alleged charges.
It is submitted that so far as the charge under Section 302/149 IPC
is concerned, the learned trial court has rightly acquitted the
accused persons of the said charges as there was no evidence at all
to support the prosecution case.
Submissions on behalf of the State
43. Ms. Shashi Bala Verma, learned Additional Public
Prosecutor for the State has opposed these appeals preferred by the
informant as well as the convicts. She has submitted that
admittedly it is a case of land dispute and several cases are
pending between the parties. The learned Additional Public
Prosecutor has submitted that the learned trial court has not
committed any error in appreciation of the evidences available on
the record. It is submitted that the motive behind the occurrence
has been duly proved. There is a case and counter case between the
Patna High Court CR. APP (DB) No.168 of 2020 dt.21-03-2025
parties in which the same place has been shown as place of
occurrence.
44. Learned Additional Public Prosecutor submits that
even as PWs-2, 3, 4 and 5 are closely related witnesses of the
informant, their evidences cannot be thrown out on this ground
alone. They are getting corroborated by the evidence of PW-6,
PW-8 and PW-10. The defence suggested the prosecution
witnesses in course of cross-examination that Md. Ajmal and
Maniruddin were injured in a motorcycle accident but the defence
has not brought any evidence to prove that Md. Ajmal and
Maniruddin had got injured in a motorcycle accident and because
of that they died. Learned Additional Public Prosecutor submits
that all the accused persons had assaulted the informant and his
uncle on the given date, place and time of occurrence by sword
and lathi causing grievous injuries to them and during the
treatment of these injuries Maniruddin died. It is submitted that
there may be some minor discrepancies in the evidence of the
prosecution witnesses, those will not prove fatal to the
prosecution. The statement of PW-1 that he had suffered injury on
the right leg even if not getting corroborated from the injury report
showing injury on his left leg, it would be a trivial issue and
cannot create any dent in the prosecution story. In these
Patna High Court CR. APP (DB) No.168 of 2020 dt.21-03-2025
circumstances, it has been submitted that the judgment of the
learner trial court needs no interference and all the appeals are
liable to be dismissed.
Consideration
45. We have heard learned counsel for the parties,
learned Additional Public Prosecutor for the State as also perused
the trial court records.
46. In the present case, as per the prosecution story, the
occurrence took place at 'aar' (Ridge) of the baigan field and the
baigan field situated west to Karbala Mor. It is this place where
the eight named accused persons are said to have surrounded the
informant and his uncle. The occurrence took place on 03.03.2018
at about 06:00 hours when the informant and his uncle were
returning after purchasing vegetables from Amdabad Market. The
market is situated at a distance of one kilometer from the place of
occurrence. Contrary to the case of the prosecution, the counter
case being Amdabad P.S. Case No. 35 of 2018 registered on the
same day (03.03.2018) (Exhibit 'A') at the instance of Tara
Khatoon wife of Md. Nazrul @ Bhola at the same time, claimed
that when the husband of the informant was returning from
Amdabad Bazar, the six named accused persons including the
deceased armed with lathi and dagger surrounded her husband.
Patna High Court CR. APP (DB) No.168 of 2020 dt.21-03-2025
Md. Tazir and Md. Jamrul caught hold of him while Vadu and
Manir assaulted her husband by dagger on the back and Pakura of
left hand causing him serious injuries. Tara Khatoon has further
alleged in her fardbeyan recorded by SI Upendra Singh at Primary
Health Centre, Amdabad at 07:45 PM on 03.03.2018 that on hulla,
villagers came and they brought her husband to Primary Health
Centre, Amdabad for treatment. The FIR of counter case has been
marked Exhibit 'A' without objection.
47. After investigation in the counter case, police
submitted a chargesheet bearing No. 263 of 2018 dated 11.11.2018
(Exhibit 'A/1') against Md. Nazir, Md. Jamrul, Md. Tazir,
Annuddin and Badu @ Ajmal. Tara Khatoon, wife of Md. Nazrul
@ Bhola is the informant of this case in hand. It is, therefore,
evident that police had found the occurrence true. Both the parties
have given the same place of occurrence. In course of cross-
examination of the prosecution witnesses, the defence did not
suggest to the prosecution witnesses as to where the motorcycle
accident had taken place.
48. The learned trial court has upon examination of the
evidences on record found that there is no discrepancy in the
evidence of the prosecution as regards the place of occurrence as
the witnesses are the residents of village of the place of
Patna High Court CR. APP (DB) No.168 of 2020 dt.21-03-2025
occurrence. We agree with the finding of the learned trial court that
the place of occurrence has been duly proved by the prosecution.
49. So far as the motive behind occurrence is concerned,
it is evident that both the parties are descending from common
ancestor Md. Siddique. The informant and the deceased are
nephew and uncle respectively. There is a chequered history of
enmity on account of land dispute. The learned trial court has
examined the evidences of prosecution witness no. 2, 3, 4 and 5
who are closely related to the informant and has concluded that
their enmity with the accused persons is natural but from the
evidence of PW-6, it would not appear that he had any enmity with
the accused persons or he was closed to the informant. His
presence at the place of occurrence is not doubtful. PW-6 has been
taken as an independent witness who has corroborated the
statement of PWs-2, 3, 4 and 5.
50. We have gone through the evidence of PW-6. He has
stated in his examination-in-chief that in between 05:30-06:00 PM,
he was at Karbala Mor, he had seen Manir and Ajmal going to his
home after purchasing vegetables from Amdabad Market. This
witness has stated that when the informant and his uncle came
down to the baigan field, the accused persons who had concealed
themselves in the maize filed came out and surrounded Manir and
Patna High Court CR. APP (DB) No.168 of 2020 dt.21-03-2025
Ajmal and started assaulting them by sword, rod and lathi.
According to this witness, Md. Nazrul, Md. Hakim and Md. Manir
were armed with sword. Md. Rafique, Md. Rasid, Md. Shager and
Md. Allauddin were armed with rod and Md. Sakil was armed with
lathi. There were altogether nine accused and the accused persons
were assaulting Ajmal and Manir. In the cross-examination, this
witness has stated that his statement was recorded by police on the
next day of the occurrence. This witness has stated that Nazrul and
Ishaque are the brother-in-law of Allauddin who have nothing to
do with the land. This witness has stated that in the village
relationship, Ajmal is his mamera bhai. The attention of this
witness was drawn towards his previous statement made before the
police, in which he had not taken name of Shakib. The witness
denied the suggestion. The I.O. (PW-11) has stated that none of the
witnesses had taken name of Shakib in course of investigation.
Name of Shakib is not mentioned in the fardbeyan of the
informant.
51. To this court, it appears that PW-6 is not a closely
related witness and his presence at the place of occurrence cannot
be doubted. This witness has supported the prosecution case to a
large extent. He has supported the manner of occurrence as alleged
in the fardbeyan of the informant by saying that Nazrul had
Patna High Court CR. APP (DB) No.168 of 2020 dt.21-03-2025
assaulted Ajmal by sword on his head. He has stated that it was
Sagir who had assaulted Ajmal by rod and thereafter all the
accused persons had assaulted Ajmal. This part of his statement
that all the accused persons had assaulted Ajmal is not
corroborated by the injury report (Exhibit '4'). Dr. Mahtabuddin
(PW-10) has proved the injury report of the informant. He had
found following injuries on his body;-
"(i) cut injury vault of skull 6cm × 1cm × bone deep
(ii) Compound fracture of left Tibia and Fibula
(iii) Left forearm swelling
age of injury- within 24 hours
Weapon- (1) Sharp, (2) Blunt
Nature of injury -Grievous"
52. The defence has suggested to the prosecution
witnesses including the informant in dock that the injuries were
caused to the informant and his uncle in a motorcycle accident and
from the cross-examination part of the evidence of doctor (PW-
10), it would appear that the doctor opined in course of cross-
examination that the injuries caused on the person of the injured
Manirul Haque and Ajmal Hussain may be caused due to
motorcycle accident. To this Court, it appears that the Doctor (PW-
10) has contradicted his own statement in the examination-in-chief
because in examination-in-chief he has clearly opined about the
age of injury, weapon and nature of injury. PW-10 has also proved
Patna High Court CR. APP (DB) No.168 of 2020 dt.21-03-2025
the nature of injury of the deceased which has been marked
Exhibit '5'. He had found the following injuries on his body:-
"(i) Compoound fracture of Right Tibia and Fibula
(ii) Compund fracture of Left Tibia and Fibula
(iii) Abrasion Left Shoulder
Age of Injury - Within 12 hours
Weapon -Blunt
Nature of Injury- Grievous"
53. Thus, in the injury report (Exhibit '5') also the
Doctor has recorded the nature of injuries. It is evident that there
were compound fracture of right tibia and fibula and left tibia and
fibula, to this Court it appears that such injuries could not have
been caused in a motorcycle accident at the place of occurrence.
There is no witness on this point and the learned trial court has
rightly concluded that the defence has not brought any evidence on
the point of motorcycle accident. We find that in the counter case
lodged by Tara Khatoon (Exhibit 'A'), there is no mention of the
motorcycle accident and the injuries caused to the informant and
his uncle in the said motorcycle accident. This Court would,
therefore, conclude that the stand of the defence that Ajmal and his
uncle (deceased) suffered injuries in motorcycle accident is only
an afterthought. The evidence of PW-10 is contradictory on the
point of his opinion in paragraph '7' of his deposition.
54. We, therefore, find that this is a fit case in which the
Court should rely upon the ocular evidences to the extent they
Patna High Court CR. APP (DB) No.168 of 2020 dt.21-03-2025
inspire confidence of the Court and no doubt may be raised against
the ocular evidences on the strength of the opinion of the doctors
who have stated in their cross-examination that the injuries caused
on the person of the injured may be caused due to motorcycle
accident. The motive behind the occurrence and the manner of
occurrence stand duly proved from the evidence of the informant
(PW-1) and the evidence of co-villager Jinnat Ali (PW-6). So far as
the evidence of PWs-2, 3, 4 and 5 are concerned, they are closely
related witnesses and inimical to the defence, therefore, their
evidences have been examined with all circumspection and care by
this Court. They corroborate the evidences of the informant and
that of Jinnat Ali (PW-6).
55. In course of argument, learned counsel for the
informant-appellant in Cr. Appeal (DB) No. 168 of 2020 has
submitted that the learned trial court has committed error in
acquitting the accused persons for the charges under Sections 504
and 302/149 IPC as not proved. While dealing with this aspect of
the matter and considering an appeal against acquittal, this Court
has kept in mind the principles governing the case of acquittal as
laid down by Hon'ble Supreme Court in the case of H.D. Sundara
vs. State of Karnataka reported in (2023) 9 SCC 581.
Patna High Court CR. APP (DB) No.168 of 2020 dt.21-03-2025
56. We would examine the reasons provided by the
learned trial court in this regard. In the impugned judgment, the
learned trial court has held that Manirul Haque suffered grievous
injuries on his both legs. He died 19 days after the occurrence, in
course of his treatment in hospital. The learned trial court has
opined that from the material on the record, it is clear that the
accused persons had knowledge that death may be caused by the
assault committed by them on Manirul Haque but the accused
persons had no intention to kill Manirul Haque. It is for this
reason, the learned trial court has acquitted respondent nos. 2 to 6
of the charges under Sections 302/149 IPC.
57. From the evidence on the record, we find that the
accused persons had assaulted Manirul Haque causing bone
fracture of tibia and fibula of both legs. The Doctor (PW-10) has
proved the injury report (Exhibit '5') of the deceased. He did not
find any injury on any vital part of the body. The injuries were
caused by blunt weapon. As per prosecution case, some of the
accused persons were armed with sword but no sword injury has
been found on the body of the deceased. The fact that Manirul
Haque (deceased) remained admitted in hospital for nineteen days
whereafter he had developed 'embolism' during treatment which
led to his death, has come in evidence of Dr. Ramrekha Suman
Patna High Court CR. APP (DB) No.168 of 2020 dt.21-03-2025
(PW-8). PW-8 has clearly opined that the cause of death was due
to cardiorespiratory arrest due to some 'embolism' as a result of
multiple major bone fracture by physical assault. In his cross-
examination, PW-8 has opined that "embolism may be caused
during treatment". Thus, we do not find any perversity in the
opinion of the learned trial court that the accused persons had no
intention to cause death of Manirul Haque (deceased). Therefore,
the charge under Section 302/149 IPC cannot be taken as proved.
58. In such circumstance, this Court would not interfere
with the judgment of the learned trial court as regards acquittal of
the accused persons/respondent nos. 2 to 6 of the charge under
Section 302/149 IPC. Cr. Appeal (DB) No. 168 of 2020 is,
therefore, dismissed.
59. We have already discussed the evidence of the
prosecution witnesses as regards the place, date and time of
occurrence as also the manner of occurrence. The motive behind
the occurrence has also been discussed hereinabove. One of the
arguments advanced on behalf of the convicts-appellants is that the
prosecution in this case has suppressed the injury of Nazrul who
had also suffered injury in the same occurrence. Learned counsel
has relied upon the judgment in the case of Anand Ramachandra
Chougule (supra) to submit that the burden lies upon the
Patna High Court CR. APP (DB) No.168 of 2020 dt.21-03-2025
prosecution to prove the allegation beyond all reasonable doubts.
So far as the accused is concerned, he has only to create a doubt
about the prosecution case and the probability of its defence. It is
submitted that if the accused takes a defence, which is not
improbable and appears likely and there is some material in
support of such defence, the accused is not required to prove
anything further. It is submitted that with regard to the same
occurrence, FIR has been lodged and the I.O. has stated that
Nazrul was taken to PHC for treatment but injury sustained by
Nazrul has not been brought on record and has been suppressed by
the prosecution which would create sufficient doubt.
60. We find from the judgment of the Hon'ble Supreme
Court in the case of Anand Ramachandra Chougule (supra) that
in the said case, the police had not investigated the FIR lodged by
the accused with regard to the same occurrence and the Hon'ble
Supreme Court was of the view that the failure of prosecution to
act fairly and place all relevant materials with regard to the
occurrence before the Court enabling to take just and fair decision
has caused serious prejudice to them. The Hon'ble Supreme Court
distinguished the another judgment of the Hon'ble Supreme Court
in the case of Dayal Singh versus State of Uttaranchal reported
in (2012) 8 SCC 263 saying that Dayal Singh's case is
Patna High Court CR. APP (DB) No.168 of 2020 dt.21-03-2025
distinguishable on its own facts as it did not relate to suppression
of materials with regard to the accused during the trial in addition
to the failure to investigate. A defective investigation shall be
completely different from no investigation at all coupled with the
suppression of the injury report arising out of another FIR with
regard to the same occurrence. The relevant paragraph '22' of
Dayal Singh's case which has been quoted by the Hon'ble
Supreme Court in the case of Anand Ramachandra Chougule
(supra) is being reproduced hereunder:-
"14. The observations in Dayal Singh7 are pertinent, as
follows : (SCC p. 277, para 22)
"22. Even the present case is a glaring example of
irresponsible investigation. It, in fact, smacks of
intentional mischief to misdirect the investigation as
well as to withhold material evidence from the court.
It cannot be considered a case of bona fide or
unintentional omission or commission. It is not a
case of faulty investigation simpliciter but is an
investigation coloured with motivation or an attempt
to ensure that the suspect can go scot-free."''
61. We find from the evidence on the record that no
doubt the injury report of Nazrul was not brought on record by the
prosecution but the FIR of the counter case (Exhibit 'A') and the
chargesheet (Exhibit 'A/1') submitted in the said case were very
7. Dayal Singh v. State of Uttaranchal, (2012) 8 SCC 263 : (2012) 4 SCC (Civ) 424 : (2012) 3 SCC (Cri)
838 : (2012) 2 SCC (L&S) 583
Patna High Court CR. APP (DB) No.168 of 2020 dt.21-03-2025
much available on the record. The evidence of the I.O. as regards
the fact that Nazrul was taken to PHC for treatment is also
available on the record. There was no pleading in this case that the
police had not investigated the counter case. In our considered
opinion, in the facts of the present case only because the injury
report of Nazrul has not been brought on record, it would not
result in doubting the whole prosecution case and threw away the
same on this ground alone.
62. Having discussed the entire materials on the record,
we are, however, persuaded to take a view that learned trial court
is not correct in holding that the case would be covered under
Section 304 Part II of the IPC. The Section 304 Part II IPC (now
Section 105 of the Bharatiya Nyaya Sanhita, 2023) reads as
under:-
"304. Punishment for culpable homicide not
amounting to murder. - Whoever commits
culpable homicide not amounting to murder, shall
be punished with 1[imprisonment for life], or
imprisonment of either description for a term which
may extend to ten years, and shall also be liable to
fine, if the act by which the death is caused is done
with the intention of causing death, or of causing
such bodily injury as is likely to cause death;
or with imprisonment of either description for a
term which may extend to ten years, or with fine, or
with both, if the act is done with the knowledge
that it is likely to cause death, but without any
intention to cause death, or to cause such bodily
injury as is likely to cause death."
1. Substituted by Act 26 of 1955, S. 117 and Sch., for "transportation for life" (w.e.f. 1-1-1956).
Patna High Court CR. APP (DB) No.168 of 2020 dt.21-03-2025
63. From the evidence on the record, it is clear that
Manirul Haque (deceased) was not assaulted on any vital part of
the body. The accused armed with sword had not even given any
blow to Manirul Haque (deceased) and all the injuries are on tibia
and fibula and one abrasion on the left shoulder by blunt
substance. The death of Manirul Haque is as a result of the
embolism which developed in course of treatment after about 19
days of treatment. In such circumstance, the conviction under
Section 304 Part II would not sustain. We set aside that part of the
conviction and sentence and acquit the accused persons/convicts of
the said charges.
64. So far as the conviction and sentence under Sections
147, 149, 341 and 325 IPC is concerned, the same requires no
interference by this Court. Further, conviction of Nazrul @ Bhola
under Section 148, 326 and 307 IPC also requires no interference
by this Court. In result, Cr. Appeal (SJ) No. 449 of 2020, Cr.
Appeal (SJ) No. 469 of 2020, Cr. Appeal (SJ) No. 473 of 2020,
Cr. Appeal (SJ) No. 611 of 2020 and Cr. Appeal (SJ) No. 629 of
2020 are partly allowed to the extent indicated hereinabove.
65. It is reported that the convicts/appellants are on bail,
they would surrender in the learned trial court within the period of
six weeks from today and shall undergo the remaining sentences, if
Patna High Court CR. APP (DB) No.168 of 2020 dt.21-03-2025
any. Learned trial court shall take appropriate steps to procure the
appearance of the convicts/appellants to serve their remaining
sentences.
66. These appeals are disposed of accordingly.
(Rajeev Ranjan Prasad, J)
(Sourendra Pandey, J)
Rishi/-
AFR/NAFR
CAV DATE
Uploading Date 08.04.2025
Transmission Date 08.04.2025
