Patna High Court
Brijbhan Sah vs The State Of Bihar on 6 May, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.85 of 2008
======================================================
Brijbhan Sah, son of Rameshwar Sah, resident of Village-Lakhai, P.S. Barhat,
District- Jamui
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (SJ) No. 115 of 2008
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1. Rameshwar Sah, son of Late Santekhi Sah
2. Ayodhya Sah, son of Late Santekhi Sah @Deepak sah.
3. Dip Narayan Sah @Deepak Sah, son of Ayodhya Sah
4. Sanjay Sah, son of Ayodhya Sah
5. Binod Sah, son of Rameshwar Sah
6. Pappu Sah, son of Late Kishan Sah
7. Bablu Sah, son of Brijbhan Sah.
All resident of Village- Lakhai, P.S. Barhat, District- Jamui
... ... Appellant/s
Versus
State of Bihar
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (SJ) No. 85 of 2008)
For the Appellant/s : Ms. Akansha Malviya, Advocate
For the Respondent/s : Mr. A.M.P Mehta, APP
(In CRIMINAL APPEAL (SJ) No. 115 of 2008)
For the Appellant/s : Ms. Akansha Malviya, Advocate
For the Respondent/s : Mr. A.M.P Mehta, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAMESH CHAND MALVIYA
ORAL JUDGMENT
Date: 06-05-2025
Heard Ms. Akansha Malviya, Amicus Curiae for
the appellants and Ms. Anita Kumari Singh, learned APP for the
State
2. The present appeal has been filed under
Patna High Court CR. APP (SJ) No.85 of 2008 dt.06-05-2025
2/29
Section 374(2) of Code of Criminal Procedure, 1973
(hereinafter referred as 'Cr.P.C') challenging the judgment of
conviction dated 19.12.2007 and order of sentence dated
20.12.2007
passed in Sessions Trial No. 399 of 2006 in
connection with Barhat P.S. Case No. 42 of 2006 passed by
learned Additional District and Sessions Judge, F.T.C-V, Jamui
whereby and where-under the appellants have been convicted
for the offence under Sections 323, 307 read with 149 and 380
of the Indian Penal Code (hereinafter referred as 'IPC') and for
the offence punishable under Section 307 read with 149 of the
IPC sentenced to undergo rigorous imprisonment for 5 years and
for the punishable under Section 380 of the IPC, sentenced to
undergo rigorous imprisonment for 3 years and both the
sentences shall run concurrently. No separate sentence has been
passed under Section 323 of the IPC in view of conviction,
sentenced under Section 307 of the IPC.
3. The brief fact leading to the filing of the
present appeal on the basis of the written information of the
informant, the complainant Urmila Devi gave a written
application to the Superintendent in-charge, Jamui that
Rameshwar Shah, Ayodhya Sah, Santosh Sah, Brijbhan Sah @
Lalu Sah, Bablu Sah, Vinod Sah, Deepak Sah, Pappu Sah and
Patna High Court CR. APP (SJ) No.85 of 2008 dt.06-05-2025
Sanjay Sah want to usurp her property, with this intention, two
months ago her husband was badly beaten up due to which her
husband fell ill, his treatment is still going on in Rajasthan.
Three-four days ago, all of them abused her and beat her
brutally, information of which was given in writing to the police
station in-charge Barhat, then the in-charge of Barhat ordered an
investigation and to took action under Section 107. Khata no.
88, Khasra no. 674, area 4 decimal is her residential land, the
accused wanted to encroach it forcefully. On the night of
01.05.2006, around 10 labourers and 4 masons forcefully
erected a pillar on our land overnight. When they went to ask
about it in the morning, Rameshwar Shah picked her up and
threw her down and all the members entered our house and
started looting in her house. Rameshwar Shah and Bablu Shah
together started strangulating them with the intention to killing
them. Goda Devi, Sugiya Devi, Binwa Devi and many women
came running and saved their life. The accused looted and took
away sewing machine, 50 kg rice, 30 kg wheat and brass pitcher
and other items.
4. Further on the basis of the written information
of the informant, a case was registered in Barhat P.S. Case No.
42 of 2006 dated 02.05.2006 under Sections 341, 448, 323, 504,
Patna High Court CR. APP (SJ) No.85 of 2008 dt.06-05-2025
307 and 380 read with 34 of the IPC and after completion of
investigation, investigating officer submitted the charge-sheet
and learned Chief Judicial Magistrate has taken cognizance on
16.07.2006/17.07.2006. Thereafter, the case has been committed
to the Court of Sessions on 23.08.2006
5. The prosecution examined altogether 6
witnesses to substantiate the charges levelled against the
appellants, who are namely, PW-1 Sugi Sugiya Devi, PW-2
Guda Devi, PW-3 Birwa Devi, PW-4 Urmila Devi, PW-5
Chandrachara Ray (Investigating Officer) and PW-6 Dr. Vasisth
Narayan Prasad (Doctor) and on behalf of accused/appellants
one defence witness has been examined, DW-1 Suresh Tanti
(Office Superintendent of Jamalpur Railway Factory).
6. PW-1 in her examination-in-chief stated that
the alleged occurrence occurred 7 to 8 months ago at approx
7:00 to 8:00 AM. in the morning she reached at the place of
occurrence after the fight started and saw that Vinod Sah, Sanjay
Sah, Bablu Sah started assaulting the victim. Further she stated
that they tried to strangle her by neck, Rameshwar Sah and
Bablu Sah were strangulating her. A cloth sewing machine
operated by leg, Rice, utensils, wheat was stolen. Deepu Sah,
Pappu Sah, Vinod Sah, Sanjay strangled her and took away all
Patna High Court CR. APP (SJ) No.85 of 2008 dt.06-05-2025
the items.
6.i. In his cross-examination, she stated that
Santoshi Sah was her grandfather-in-law, Vanshi Sah and
Santoshi Sah were brothers. Dasrath Sah is her son and he was
at home at the time of alleged occurrence. The sons of Santoshi
Sah are accused persons in this case. A title suit was going on
before this case. She is not a party in that case. She further
stated that when she went at the place of occurrence, she found
Urmila Devi lying down and she also saw injuries on her throat
and other body part also particularly at three part. Blood was
oozing out from her mouth. She lifted Urmila Devi and took to
her home. She did not had any conversation with Urmila Devi.
she went to her home after leaving her at her home.
6.ii. She also stated that the Police had recorded
her statement after four days of the alleged occurrence at her
home. At 7:00 AM. in the morning and she had stated before the
Police that she reached at the place of alleged occurrence after
the fight had started and saw that Vinod Sah, Sanjay Sah, Bablu
Sah were assaulting Urmila Devi. Rameshwar Sah and Bablu
Sah tried to strangulate her. After that they took away cloth
sewing machine, rice, wheat, utensils and Deepu Sah, Pappu
Sah, Vinod Sah, Sanjay Sah strangled the victim and took away
Patna High Court CR. APP (SJ) No.85 of 2008 dt.06-05-2025
all the items. Brijbhanu Sah was present on the day of the
incident not gone on duty.
7. PW-2 in her examination-in-chief stated that
the alleged occurrence occurred eight months ago in the
morning and she was at her house when she heard the noise
came from Urmila's door. She stated that Rameshwar Sah,
Bablu Sah, Brijbhan Sah, Vinod Sah, Ayodhya Sah, Sanjay Sah,
Pappu Sah were started abusing and assaulting Urmila. The
accused persons tried to strangulate Urmila Devi. They took
away cloth sewing machine, one sack each of wheat and rice,
utensils.
7.i. In her cross-examination, she stated that
Sugiya Devi is the wife of Ramcharan and witness in this case.
Pappu, the son of Kishun, Rameshwar, Sons of Rameshwar
Brijbhan and Vinod and Bablu, the son of Brijbhan all are
accused in this case. She also stated that a land dispute is going
on between the two parties. Her village is a settlement of about
5-6 hundred houses, people of all castes live there. Houses of
Phagu Yadav, Dinesh Modi, Brahmdeo Goswami, Phulan Yadav,
Ramji Goswami is nearby her house. These people live with
their family and children in their houses.
7.ii. She further stated that the noise continued
Patna High Court CR. APP (SJ) No.85 of 2008 dt.06-05-2025
for sometime and her house is at distance. There are around 5-7
houses between her house and Urmila's house. She reached at
the place of occurrence after 4-5 hours since she heard the noise.
She saw Urmila Devi in her own house. She did not had any
conversation with her and returned home after that. She had
recorded her statement before the Police after ten days.
8. PW-3 in her examination-in-chief stated that
The incident occurred eight months ago at 8:00 AM. in the
morning, that time she was at her house and went to the place of
alleged occurrence when she heard fighting and abuses. She
saved Urmila Devi the victim when Bablu and Rameshwar
assaulted and tried to strangulate the victim. They took away
wheat and rice. She ran after Urmila shouted when they tried to
strangulate her.
8.i. In his cross-examination, she stated that she
and Urmila Devi are cousin sister-in-laws (wife of husband's
brother). Her husband and Urmila Devi's husbands are own
brothers. Both the parties are cognates. There is a land dispute
between both the parties. This case happened because of that
land dispute. She further stated that there are houses of Yadavs,
Gosains etc. around her house. At that time, there was no one
else at her house. The noise continued for about one to one and
Patna High Court CR. APP (SJ) No.85 of 2008 dt.06-05-2025
half hours. she went there 5-10 minutes after the noise. She saw
the victim lying down when she reached there. She lifted Urmila
Devi and took her to her home and sprinkled water on her, after
that the victim felt a bit normal after sprinkling of water and
regained her consciousness. She did not have any conversation
with victim after she regained consciousness. She went to her
home after that. She also stated that Brijbhan is employed. She
don't know that he works in Railway in Jamalpur. She don't
know whether he was in Jamalpur or not on the day of the
alleged occurrence. Rameshwar is an old man she had recorded
her statement before the Police once.
9. PW-4 in her examination-in-chief stated that
The incident occurred about 9 months ago at about 7:0 AM. to
8:00 AM. in the morning she wake up and saw that a pillar was
erected at the disputed land. Rameshwar Sah, Brijnath Sah,
Vinod Sah, Bablu Sah, Pappu Sah, Dinanath Sah, Ayodhya Sah,
Sanjay Sah together erected a pillar. she asked them to whatever
they want to with their land leaving her land, on which they
started beating her. Rameshwar Sah, Bablu Sah started
strangulating her with a Gamchha (towel). Sanjay Sah, Brijnath,
Vinod Sah, Pappu entered into house and took away (about 40
kg) rice, Sewing machine, Brass utensils etc. When children
Patna High Court CR. APP (SJ) No.85 of 2008 dt.06-05-2025
started crying, they ran away. She filed this case. She had given
application to SP, which bears her signature. She identify her
signature and it was marked as Ext.-1.
9.i. In his cross-examination, she stated that
Houses of both parties are at the same place. The accused lives
in one part of the house and she live in another part of house of
the same house. The separation was not done through
measurement. She call the disputed land as her and the accused
calls it their. Title suit is already proceeding on this land. She
had given application in the Title suit that the accused have
erected pillars. She do not know the plot no. of the disputed
land. She got the Khatiyan (sale deed) of the land read over to
her. The sale deed is in the name of Hemraj Sah and he is the
father-in-law of the accused Rameshwar Sah. Other accused
persons are brothers, nephews and sons of Rameshwar Sah.
9.ii. She further stated that she did not remember
what was the Gamchha (towel) made of and her neck was
swollen after being strangulated by the Gamchha. Nothing else
happened. She got unconscious after being strangulated. She
gained consciousness after water was sprinkled on her face. All
the accused persons left when she gained consciousness. She
went to Jamui Deputy Superintendent of Police after the
Patna High Court CR. APP (SJ) No.85 of 2008 dt.06-05-2025
incident and gave an application that Rameshwar Sah and Bablu
Sah strangulated her with a Gamchha. Rameshwar Sah is an
aged man. She cannot tell his age. She didn't go to the Jamui
Hospital.
9.iii. She also stated that she narrated about the
alleged occurrence to many people in the village but she cannot
tell the name of anyone and no villagers helped her. She gave
her statement to the police and no statement was taken in Jamui.
The Daroga (SI) had come from Barhar Jamui and she had met
her and the pillar was shown to the Daroga. The pillar was not
built before her.
9.iv. She further stated that Brijbhanu Sah works
in Jamalpur and he had not gone to Jamalpur for work on the
day of alleged occurrence. It is not true that the land belongs to
the accused persons and she had filed false case to usurp the
land and had falsely testified. She also has a share in the land
and she demand her share. She had filed Title suit for the same,
which is undergoing.
10. PW-5 in his examination-in-chief stated that
he was posted in the Barhar PS on 2-5-06. The investigation of
Barhar PS case no. 47 of 06 was done by PS SHO. The written
application was given to SP, which he forwarded to SHO Barhar
Patna High Court CR. APP (SJ) No.85 of 2008 dt.06-05-2025
along with the informant. he was handed over the charge of
investigation by SHO. The formal FIR is in the handwriting and
Signature of SHO which he identify and marked as Ext.-2.
10.i. He further stated that after assuming the
charge of investigation, he recorded the statement of the
informant and prepared the injury report of the injury found on
the body of the informant and sent her to the doctor for
examination. He inspected the place of occurrence. It was told
that the accused persons entered the house of the informant and
took away her goods and strangled her and threw her down with
the intention to kill her. The boundary of the place of occurrence
is on north direction there is rural road, on south there is a
scaffold, in east-west there is rural path. He stated that he
recorded the statement of witnesses Goda Devi and Binwa devi
and arrested the accused. Submitted charge-sheet as per the
orders of senior officer.
10.ii. In his cross-examination, he stated that the
informant did not show the land related papers. He demanded
the papers from her. Further he stated that on seeing the written
application from which it was known that there is a land dispute.
The place of occurrence was told by the villagers, but it is not
mentioned in the case diary. He did not prepare the map of the
Patna High Court CR. APP (SJ) No.85 of 2008 dt.06-05-2025
house of place of occurrence. He did not mention the details of
inside of the house of the informant and did not mention that the
goods were taken from which part of the house.
10.iii. He also stated that he did not record the
statement of Darbari. It is not written that Darbari Yadav was
inquired. Statement of any independent witness was not
recorded, it is adjacent to the PS. He received the injury report
of the informant but did not mention it in the case diary. The
injury report was received on 10.05.06. It was received from
office clerk. His name has not been mentioned. It is mentioned
in para 30 that the supervision of this case shall be done by
police inspector. The inspector did not supervise this case.
10.iv. He further stated that Sugiya Devi did not
state before him that she reached when a fight broke out. It was
also not stated that Vinod sah, Sanjay Sah, Bablu Sah started
beating Urmila, neither it was said that Rameshwar Sah and
Bablu Sah were strangulating. It was not said that Sewing
machine, rice, wheat etc were taken. It was not said that Deepu
Sah, Pappu Sah, Vinod Sah, Sanjay Sah took the goods.
10.v. Goda Devi did not state that while she was
at home, she heard commotion from the house of Urmila Devi.
Goda Devi did not take the name of the accused person before
Patna High Court CR. APP (SJ) No.85 of 2008 dt.06-05-2025
him. She also did not state regarding taking away of one sack of
wheat, Plate, Lota (small round utensil).
11. PW-6 in his examination-in-chief stated that
on 02.05.2006 he was posted at Additional PHC Badhat as
Medical Officer In-Charge as well as Medical Officer. On that
day, at about 3:50 PM. he examined Smt. Urmila Devi Lakhot
PS Badhat and District Jamui. On investigation of wound
following injuries were found on her body
i) One buries 2.5x ½ lying obliqely just
below left scapula on the back.
ii) One buries on right side of neck ½ x ½
at 3/2 ,, posterior right angle of mandible.
iii) One bruise on left side of neck ½ x ¼ at
5/2 above mid clamicular point.
Opinion- all injuries have
been caused by hard and blunt substance
and are simple in nature. Age of injuries
within twenty-four hours. M.I.- An old
wound scare on left leg.
The injury report is in his pen and signature marked as Ex-3.
11.i. In his cross-examination, he stated that
bruise is reaction any mark over the skin by some object. The
bruise are possible by fall. The injury no. 2 and 3 may be self
inflicted injuries. All the injuries are superficial in nature. The
age of injury depend upon change of color. I have not mentioned
the color of injury.
Patna High Court CR. APP (SJ) No.85 of 2008 dt.06-05-2025
12. DW-1 in his examination-in-chief stated that
he know Brajbhanu Sah s/o- Rameshwar Sah, r/o- Lakhait, PS-
Badhat, District- Jamui. He works on the post of helper in
Jamalpur Railway workshop. He further stated that had received
a notice issued by the court. Brajbhanu Sah was present on his
duty at Railway workshop Jamalpur from morning 7 am to 1600
(4 pm) on 02.05.2006. This is the attendance register of
02.05.2006. The attendance register of 02.05.2006 is in the
handwriting and signature of Shri Kamleshwari Ravidas, Junior
Engineer which I recognize. It is marked as Exhibit-A.
Brajbhanu Sah was on leave from 03.05.2006 to 06.05.2006
after performing his duties on 02.05.2006, which is mentioned
as L.A.P. he have been authorized and sent from the workshop.
12.i. In his cross-examination, he stated that
Facility of both train and bus are available to travel from
Jamalpur workshop to Jamui. He cannot tell the distance of
Jamalpur from Jamui. It takes about 2 hours by train to travel
from Jamalpur to Jamui. Shri Kamleshwari Ravidas is currently
working in the workshop. The attendance in the attendance
register (Exhibit-A) was not marked before him. Work order is
filled on the attendance register which is written by employees
of the office. Work order is filled before work.
Patna High Court CR. APP (SJ) No.85 of 2008 dt.06-05-2025
12.ii. He further stated that he cannot tell the
reason due to which Brajbhanu Sah has been on leave since
02.05.2006. It is not true that Brajbhanu Sah was not present in
the workshop on 02.05.2006 and he and Kamleshwari Ravidas
have made false entry in the register in connivance with
Brajbhanu Sah. It is not mentioned that how many pages are in
total in Exhibit-A, neither it bears signature or seal of any
officer. The attendance register (Exhibit-A) is from June-2005 to
June-2006. The name of workers is mentioned on the page after
this, but the attendance register is blank. The names of workers
Umashankar Prasad, Subodh Das, Gautam Sen Gupta, Ranjit
Sen Gupta is mentioned and work order of one day is written,
rest all pages are blank. It is also in the handwriting of
Kamleshwari Ravidas. He also stated that each worker of the
workshop has a G.A. (General attendance) card. Time Punching
is done at the time of entry on which time and date is written
and the time and date of exit from the workshop is also
mentioned on the G.A. card. Timing of G.A. Card of each
worker is in the office. The punching on the card is done by the
machine and Punch card can be produced in the court. He
further stated that this over-writing Register dated 02.05.2006 is
related to Brajbhanu Sah. Register is in the signature and
Patna High Court CR. APP (SJ) No.85 of 2008 dt.06-05-2025
handwriting of R.K. Singh, Junior Engineer which I identify, it
is marked as Exhibit -B. He have also brought General
Attendance Card, which is related to Brajbhanu Sah. The
number of this card is 24604. This is in the handwriting and
signature of Jawahar Lal Sah, Head clerk which he recognize.
13. Learned Amicus-Curiae Ms. Akansha
Malviya submits that the impugned judgment of conviction and
order of sentence are not sustainable in the eye of law or on
facts. Learned trial Court has not applied its judicial mind and
erroneously passed the judgment of conviction and order of
sentence from the perusal of the evidences adduced on behalf of
the prosecution it is crystal clear that the place of occurrence in
this case has not been shown by the prosecution. It has not been
established and there is contradiction in the statements of
witnesses regarding the place of occurrence. She further
submitted that PW-1 in her deposition stated that she came at
the time when fight took place whereas in her cross-
examination, she stated that when she reached at the place of
occurrence, she found the informant unconscious and found
injury on her body and on neck. Similarly, PW-2 stated in
examination-in-chief that she heard some hulla and reached at
the place of occurrence and saw accused/appellants strangling
Patna High Court CR. APP (SJ) No.85 of 2008 dt.06-05-2025
and hitting the informant. But in her cross-examination, she
stated that she reached at the place of occurrence after 4-5 hours
after shouting started and saw informant at her house. PW-3 also
stated in her examination-in-chief that she reached at the place
of occurrence and saved the informant whereas in her cross-
examination she stated that when she reached at the place of
occurrence the informant was unconscious. PW-1, 2 and 3 have
admitted the fact there is land dispute ongoing between the
informant and appellants.
13.i. She further submitted that investigating
officer of the present case (PW-5) in his deposition clearly
stated that he did not took the statement of any independent
witnesses and there was delay of 8 days in preparing the injury
report of the informant. PW-5 further stated that informant did
not gave the documents of the land and no pillar has been found
at the house of informant. He further stated in his deposition that
while recording the statement, none of the prosecution witnesses
have narrated the story as alleged by the prosecution. She
further submitted that PW-6 (Medical Officer) stated in his
cross-examination that the injury is simple in nature and injury
no. 2 and 3 may be self-inflicted and all the injuries are
superficial in nature. She further submitted that at the time of
Patna High Court CR. APP (SJ) No.85 of 2008 dt.06-05-2025
occurrence the appellant namely Brij Bhan Sah was present in
the Railway Factory and attended his duty which has been
certified by the competent authority.
13.ii. Learned Amicus-Curiae further submitted
that all the witnesses are interested witnesses and no
independent witness has been examined by the prosecution. It is
admitted fact that there is land dispute going on between the
appellants and informant and entire family has been made
accused in false concocted case due to land dispute. As this
appeal is of the year 2008 and occurrence is of the year 2006,
where, the appellants have suffered and undergone persistent
agony on the account of the same and are struggling for the
defence since last 19-20 years. So, the appellants should have
been acquitted from the conviction as sentenced against them.
13.iii. Learned Amicus-Curiae has relied upon
the judgment of the Hon'ble Apex Court in the case of 'State of
Maharashtra v. Kashirao and Ors.' (2003) 10 SCC 434, where
the Apex Court had laid down the essential ingredients required
to be proved in case of an offence under Section 307 of IPC.
The relevant portion of the judgement reads as under:
"20...... The essential ingredients required
to be proved in the case of an offence under
Patna High Court CR. APP (SJ) No.85 of 2008 dt.06-05-2025
Section 307 are:
(i) that the death of a human being
was attempted;
(ii) that such death was attempted to
be caused by, or in consequence of the
act of the accused; and
(iii) that such act was done with the
intention of causing death; or that it
was done with the intention of causing
such bodily injury as.
(a) the accused knew to be likely
to cause death; or
(b) was sufficient in the ordinary
course of nature to cause death,
or that the accused attempted to
cause death by doing an act
known to him to be so imminently
dangerous that it must in all
probability cause
(a) death, or
(b) such bodily injury as is
likely to cause death, the
accused having no excuse
for incurring the risk of
causing such death or
injury.
13.iv. Further she relied upon the judgment of the
Hon'ble Apex Court in the case of State of M. P. V. Saleem
(2005) 5 SCC 554, where Hon'ble Apex court has categorically
held that whether there was intention to kill or knowledge that
death will be caused is a question of fact and would depend on
the facts of a given case, Relevant portion of the judgement
Patna High Court CR. APP (SJ) No.85 of 2008 dt.06-05-2025
reads as under:
"16. Whether there was intention to kill or
knowledge that death will be caused is a
question of fact and would depend on the
facts of a given case. The circumstances
that the injury inflicted by the accused was
simple or minor will not by itself rule out
application of Section 307 IPC. The
determinative question is the intention or
knowledge, as the case may be, and not the
nature of the injury...."
13.v. In the case of Hari Mohan Mandal v.
State of Jharkhand (2004) 12 SCC 220, relevant portion of the
same reads as under:
"17. The first injury was certainly on vital
part and taking into account the injuries on
the various parts of the body, Section 307
IPC has been rightly invoked. The accused
has been rightly convicted for offences
punishable under Section 307 IPC.
However, taking into account the fact that
the altercations took place at the time of
husking paddy and there was no
premeditation or planning of the attack,
custodial sentence of five years would meet
the ends of justice. It is to be noted that
scope for consideration in the appeal was
limited to the nature of offence and
consequently the sentence."
13.vi. In the case of Jai Narain Mishra and Ors.
v. State of Bihar (1971) 3 SCC 762, relevant portion of the
same reads as under:
Patna High Court CR. APP (SJ) No.85 of 2008 dt.06-05-2025
"11. ....Out of the four injuries which the
Medical Officer noted, this injury was of a
grievous nature while the other three
injuries were simple in nature. Where four
or five persons attack a man with deadly
weapons it may well be presumed that the
intention is to cause death. In the present
case, however, three injuries are of a
simple nature though deadly weapons were
used and the fourth injury caused by Suraj,
though endangering life could not be
deemed to be an injury which would have
necessarily caused death but for timely
medical aid. The benefit of doubt must,
therefore, be given to Suraj with regard to
the injury intended to be caused and, in our
opinion, the offence is not one under
Section 307 IPC, but Section 326 IPC his
conviction, therefore, under Section 307
IPC is set aside...."
13.vii. In the case of Amar Singh v. State of
Punjab (1987) SCC 679, has held that in case an inconsistency
in medical report and testimony of witnesses has not been
explained the entire prosecution case is discredited. In this
regard, reliance is placed on the following part of the
judgement:
"10. It is next contended on
behalf of the appellants that the learned
Additional Sessions Judge and the High
Court were not justified in placing any
reliance upon the evidence of PW 5 Smt
Veero, which is totally inconsistent with the
medical evidence. It has been already
Patna High Court CR. APP (SJ) No.85 of 2008 dt.06-05-2025
noticed that all the accused persons were
armed with sharp weapons. It is the
evidence of PW 5 that Amar Singh, son of
Bachan Singh, and Rattan Singh were each
armed with a sua, Lakha Singh was armed
with a barchi, Harbhajan Singh was armed
with a kulhari and Amar Singh, son of Isher
Das, was armed with a kirpan. She said:
"Then all the accused except Bachan Singh
accused surrounded my son Piara Singh
(deceased). Then Lakha Singh accused
gave a barchi-blow on the left knee of my
son. Then Piara Singh (deceased) fell down
and all the accused then gave injuries to
him with their respective weapons." In her
cross-examination she said that the accused
persons gave quite a number of blows with
their respective weapons after they had
overpowered him, and that many of the
blows fell on the ribs and abdomen of
deceased Piara Singh. But not a single
incised wound was found on the body of the
deceased by PW 2 Dr Verma. Moreover, the
medical report shows that there was no
injury on the ribs and abdomen of the
deceased. We are unable to accept the
evidence of PW 5 that although a number of
blows were given by the accused with their
weapons on the ribs and abdomen of
deceased, yet such blows did not produce
any mark of injury. The medical report
submitted by PW 2 shows that there were
only contusions, abrasions and fractures,
but there was no incised wound on the left
knee of the deceased as alleged by PW 5. If
her evidence that all the accused inflicted
injuries on the deceased with their
respective weapons has to be accepted, then
Patna High Court CR. APP (SJ) No.85 of 2008 dt.06-05-2025
there would be incised wounds all over the
body of the deceased, but the medical
report shows that not a single incised
wound was found on the body of the
deceased. Thus the evidence of PW 5 is
totally inconsistent with the medical
evidence, This Court in Ram Narain Singh
v. State of Punjab [(1975) 4 SCC 497: 1975
SCC (Cri) 571: AIR 1975 SC 1727] has laid
down that if the evidence of the witnesses
for the prosecution is totally inconsistent
with the medical evidence, this is a most
fundamental defect in the prosecution case
and unless reasonably explained, it is
sufficient to discredit the entire case. There
is no explanation for the apparent total
inconsistency between the evidence of PW-5
and the medical evidence."
14. However, learned APP for the State defends
the impugned judgment of conviction and the order of sentence
submitting that there is no illegality or infirmity in the impugned
judgment and order of sentence, because prosecution has proved
its case against the appellants beyond all reasonable doubts. In
view of the aforesaid statements and the evidence on record,
learned trial Court has rightly convicted the appellants and the
present appeal should not be entertained
15. At this stage, I would like to appreciate the
relevant extract of entire evidence led by the prosecution before
the Trial Court. I have thoroughly perused the materials on
record and aforesaid judgments referred by the Amicus Curiae
Patna High Court CR. APP (SJ) No.85 of 2008 dt.06-05-2025
as well as given thoughtful consideration to the submissions
advanced by both parties.
16. On deeply studied and scrutinized all
evidences, it is evident to note that the instant case is a case of
no evidence and is not sustainable in the eye of law. The
prosecution version does not seem to be true in the background
of the facts of the case as PW-4 (informant) in her deposition
has contradicted her statement by stating a new story that
Rameshwar Sah and Bablu Sah pressed her neck with the
'Gamcha' while in the FIR she stated that accused/appellants
pressed her neck from the hand. The informant herself admitted
the fact that there is ongoing land dispute between her and
appellants for which title suit is pending prior to the occurrence.
PW-4 in para-5 stated that from pressing the neck by gamcha,
the neck bulged out except that there is no injury received and in
para-8 of her deposition she stated that she demanded her share
from the disputed land. From perusal of other prosecution
witnesses' deposition, it is evident to note that all witnesses are
interested and related witnesses and no independent witnesses
have been examined during the course of trial.
17. Hon'ble Supreme Court in the case of
Tahsildar Singh & Anr. v. State of Uttar Pradesh AIR 1959 SC
Patna High Court CR. APP (SJ) No.85 of 2008 dt.06-05-2025
1012: Differentiated between minor contradictions (which do
not affect credibility) and major contradictions (which go to
the root of the prosecution case). Minor discrepancies are
inevitable in human testimony and should not be given undue
importance. However, contradictions on material particulars
can be fatal.
17.i. In State of U.P. v. M.K. Anthony AIR 1985
SC 48: - Some contradictions are natural due to passage of time
and stress. But serious contradictions affecting core facts may
render prosecution unreliable. The Court acquitted the accused
due to material contradictions in eyewitness testimony.
17.ii. In Babu v. State of Kerala (2010) 9 SCC
189: - The Court emphasized that prosecution evidence must
be trustworthy and consistent. When witnesses contradict
themselves materially, the benefit must go to the accused.
Doubt arose due to discrepancies in the time and sequence of
events, leading to acquittal.
17.iii. In Ramsewak v. State of M.P. (2010) 1
SCC 439: - Eyewitnesses gave contradictory accounts regarding
the location, time, and sequence of attack. Such major
inconsistencies led to the collapse of prosecution case.
Patna High Court CR. APP (SJ) No.85 of 2008 dt.06-05-2025
17.iv. In Lallu Manjhi v. State of Jharkhand
(2003) 2 SCC 401: - Witnesses contradicted themselves on basic
facts (place of occurrence, identity, role of accused). Held:
Conviction cannot be sustained when prosecution evidence is
riddled with material contradictions.
17.v. In Vikas v. State of Maharashtra (2008) 2
SCC 516: - Contradictions between FIR and deposition, and
between witnesses, were central to acquittal. The benefit of
doubt was extended due to failure of prosecution to prove
guilt beyond reasonable doubt.
18. Further, investigating officer of the present
case (PW-5) in his deposition clearly stated that he did not took
the statement of any independent witnesses and there was delay
of 8 days in preparing the injury report of the informant. PW-5
further stated that informant did not gave the documents of the
land and no pillar has been found at the house of informant. He
further stated in his deposition that while recording the
statement, none of the prosecution witnesses have narrated the
story as alleged by the prosecution. As PW-6 (Medical Officer)
stated in his cross-examination that the injury is simple in nature
and injury no. 2 and 3 may be self-inflicted and all the injuries
are superficial in nature. Informant did not remember what was
Patna High Court CR. APP (SJ) No.85 of 2008 dt.06-05-2025
the Gamchha (towel) made of and her neck was swollen after
being strangulated by the Gamchha. Informant further did not
mentioned anywhere in her entire deposition about the treatment
of her injury by any local/government doctor. It is evident that
ocular testimony is clearly not supported by medical report. PW-
6 stated that bruise is reaction any mark over the skin by some
object. The bruise are possible by fall. The injury no. 2 and 3
may be self inflicted injuries. All the injuries are superficial in
nature. Considering the fact that at the time of occurrence the
appellant namely Brij Bhan Sah was present in the Railway
Factory and attended his duty which has been certified by the
competent authority, prosecution has failed to substantiate the
case against the appellants beyond all reasonable doubt.
19. The learned trial Court failed to scrutinize the
evidence brought on record regarding deficiencies, drawbacks
and infirmities crept during course of trial and passed the
impugned judgment in complete ignorance of criminal
jurisprudence and passed absurd judgment. Moreover, there are
discrepancies regarding the sequence of events and the presence
of individuals at the place of occurrence and there was on going
land dispute between the accused/appellants and informant.
Considering this fact, prosecution has failed to establish this
Patna High Court CR. APP (SJ) No.85 of 2008 dt.06-05-2025
case beyond all reasonable doubt, therefore, in such
circumstances, it may not be proper to convict the
appellants/accused on the materials available on record. Hence,
the judgment of conviction and order of sentence in this present
matter is fit to be set aside.
20. Hence, the Judgment of conviction dated
19.12.2007 passed in Sessions Trial No. 71 of 2008 arising out
of Barhat P.S. Case No. 42 of 2006 passed by learned Additional
District and Sessions Judge, F.T.C-V, Jamui is set aside and the
accused/appellants are acquitted from the charges leveled
against them. As the appellants are on bail, they are discharged
from their liability of bail bonds.
21. Before parting with this appeal, Secretary,
Patna High Court Legal Services Committee is directed to pay
Rs. 8,000/- (eight thousand) to the learned Amicus Curiae,
namely, Ms. Akansha Malviya towards honorarium for assisting
this Court in the present appeal.
22. Let a copy of first and last page of this
judgment be handed over to the advocate Ms. Akansha Malviya,
learned Amicus Curiae and Office is directed to proceed further
in granting honorarium to him which is to be paid by Patna High
Patna High Court CR. APP (SJ) No.85 of 2008 dt.06-05-2025
Court Legal Services Committee.
23. Accordingly, this appeal is allowed.
24. Office is directed to send back the trial court
records and proceedings along with a copy of this judgment to
the trial court, forthwith, for necessary compliance, if any.
(Ramesh Chand Malviya, J)
Harshita/-
AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 13.05.2025
Transmission Date 13.05.2025
