Patna High Court
Deepak Choubey vs The State Of Bihar on 31 October, 2025
Author: Anshuman
Bench: Anshuman
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.308 of 2018
Arising Out of PS. Case No.-51 Year-2002 Thana- BALTHAR District- West Champaran
======================================================
Deepak Choubey Son of Ramadhar Choubey Resident of Village - Parsauni
Ghogha, P.S. Balthar, District - West Champaran.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Sanjeev Kumar, Advocate
Mr. Sitesh Kashyap, Advocate
For the State : Mr. Abhimanyu Sharma, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
and
HONOURABLE MR. JUSTICE DR. ANSHUMAN
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI)
Date : 04-11-2025
The appellant is one of the three accused persons
named in the First Information Report (FIR) in Balthar P.S. Case
No. 51 of 2002, dated 19th December 2002. The case was
registered against the accused under Sections 302 and 34 of the
Indian Penal Code (IPC).
2. On the basis of a statement made by one Sanjeev
Kumar Chaubey of village Parsauni Ghogha, within P.S. Balthar in
the District of West Champaran, and after a charge-sheet had been
filed by the police authority against the three FIR-named accused,
the appellant faced a separate trial in Sessions Trial No. 201 of
2003 and was convicted for committing an offence under Section
Patna High Court CR. APP (DB) No.308 of 2018 dt. 04-11-2025
302 of the IPC. He was sentenced to suffer life imprisonment and
to pay a fine of Rupees 10,000/-, with a default clause of
imprisonment for six months for non-payment of the fine.
3. The present appeal has been filed assailing the order
of conviction and sentence passed by the learned Additional
Sessions Judge, Fast Track Court II, Bettiah, West Champaran, on
22nd February 2018.
4. On 16th December 2002, one R. Singh, Sub-Inspector
of Police attached to Pirbahore Police Station in the District of
Patna, recorded the statement of one Sanjeev Kumar Chaubey at
about 9:45 a.m. inside the Surgical Emergency Hall of Patna
Medical College and Hospital. He stated to him, in the presence of
one Umesh Paswan, that his uncle, Anil Chaubey, aged about 30
years, was a cultivator by profession. On 15th December 2002, at
about 9:30 a.m., he was shaving while sitting in front of the door
of his house. At that time, Ramadhar Chaubey, Deepak Chaubey
(son of Ramadhar Chaubey and the present appellant), and Dinesh
Chaubey, all of the same village, came to the spot, being armed
respectively with a gadasa (chopper or axe), a spade, and a bhala
(spear).
5. Ramadhar Chaubey assaulted the uncle of the
informant, Anil, with the help of a Gadasa on his hand, and
Patna High Court CR. APP (DB) No.308 of 2018 dt. 04-11-2025
Deepak Chaubey assaulted him on his head with the help of a
spade. He suffered a bleeding injury on his head and started
shouting and crying. At that time, Dinesh Chaubey assaulted him
with his Bhala, which struck behind his left ear. Hearing the hue
and cry of the injured Anil Chaubey, his family members and other
neighbouring people rushed to the place of occurrence. Seeing
them, the accused persons fled away. Injured Anil Chaubey
became unconscious as a result of the assault and was taken to
Bettiah District Hospital for medical treatment. After initial
treatment, the injured was referred to PMCH for better treatment.
Subsequently, on 16th December 2002 at about 3:00 a.m., Anil
Chaubey breathed his last at Patna Medical College and Hospital.
The informant also stated that the deceased was murdered due to a
landed property dispute with the accused persons.
6. The statement of the informant, so recorded by S.I. R.
Singh of Pirbahore Police Station, Patna, was sent to Balthar
Police Station for registration of a case against the accused
persons. As the information revealed a cognizable offence, Balthar
P.S. Case No. 51 of 2002, dated 19th December 2002, was
registered against Ramadhar Chaubey, Deepak Chaubey, and
Dinesh Chaubey under Sections 302/34 of the IPC. The police
took up the case for investigation and, upon completion, submitted
Patna High Court CR. APP (DB) No.308 of 2018 dt. 04-11-2025
a charge-sheet under Sections 302/34 of the IPC against the above-
named accused persons. All three accused faced separate trials
before the trial court, as they had absconded at different points of
time during the proceedings. It is pertinent to mention that the
appellant faced trial in Sessions Trial No. 201 of 2003, while
accused Ramadhar Chaubey faced trial in Sessions Trial No. 342
of 2009. There is, however, no record before us indicating the
Sessions Trial number in which accused Dinesh Chaubey faced
trial.
7. During the trial, the prosecution examined eight
witnesses. Among them, PW-6 is the de facto complainant. PW-1,
Umesh Paswan, claimed to be an eyewitness to the occurrence.
PW-2, Lalan Thakur, did not support the prosecution case and was
declared hostile by the prosecution. PW-3, Satish Kumar Chaubey,
is the nephew of the deceased. PW-4 is the widow of the deceased.
PW-5, Ganesh Mukhiya, is a local villager who claimed that on the
date of occurrence at about 9:30 a.m., he rushed to the house of the
deceased hearing the hue and cry. PW-7, Poonam Kumari, was a
Sub-Inspector of Police attached to Balthar Police Station on 19th
December 2002. She was the Investigating Officer of the case.
PW-8, Dr. Ashok Kumar Yadav, was posted as Associate Professor,
Department of Forensic Medicine and Toxicology, Patna Medical
Patna High Court CR. APP (DB) No.308 of 2018 dt. 04-11-2025
College and Hospital, on 16th December 2002. He conducted the
post-mortem over the dead body of the deceased Anil Chaubey and
submitted his report.
8. The defence case, as disclosed from the cross-
examination of the prosecution witnesses and the examination of
the accused under Section 313 of the CrPC, appears to be a
complete denial of the prosecution case. The accused stated in his
statement recorded under Section 313 of the CrPC that he was
falsely implicated in this case due to a property dispute between
him and the other accused persons and the deceased. It was also
pleaded by the appellant that on the date and time of the
occurrence, the deceased fell down on some hard substance and
received an injury on his head. The appellant and other accused
persons were falsely implicated by the informant, taking advantage
of the injury sustained by the deceased.
9. The trial court, on due examination of evidence on
record, held the appellant guilty of committing the offence under
Section 302 of the IPC, convicted, and sentenced him to suffer
imprisonment for life and fine for committing the offence under
Section 302 of the IPC.
10. The present appeal challenges the judgment passed
by the trial court.
Patna High Court CR. APP (DB) No.308 of 2018 dt. 04-11-2025
11. Learned Advocate on behalf of the appellant submits
that the prosecution failed to examine any eye-witnesses to the
occurrence. All the eye-witnesses including the informant stated in
their evidence that they rushed to the place of occurrence after
hearing a "Halla". It is also found from the evidence on record that
hue and cry was made by the victim after receiving injury,
therefore, the witnesses obviously did not see the appellant
assaulting the victim with the help of a spade as alleged by the
prosecution. Secondly, it is submitted by the learned counsel for
the appellant that the victim became unconscious after being
assaulted, therefore, there could not have been any occasion for the
victim to communicate the names of the assailants to the informant
or to any other witnesses. So, there is no basis to implicate the
appellant in the instant case. In order to substantiate his contention,
he refers to the initial statement of the informant on the basis of
which FIR was registered against the appellant and two others
under Section 302 of the IPC. In the FIR, it is stated that on 15 th
December 2002 at about 9:30 AM, his uncle was shaving his beard
sitting in front of the entrance door of the house. At that time, the
appellant along with one Ramadhar Choubey being armed with
Gadasa (axe), spade and Bhala (spear) came to the place of
occurrence where the uncle of the informant was shaving. They
Patna High Court CR. APP (DB) No.308 of 2018 dt. 04-11-2025
abused him with filthy language and assaulted him. Deepak
Choubey struck him by a spade twice on the head of the victim. As
a result of which, he sustained bleeding injury on his head. Then
he started to cry. Thereafter, Dinesh Choubey assaulted him with
the help of spear on the back side of his left ear. Ramadhar
Choubey assaulted him with the help of gadasa. Hearing his cry,
the informant along with other members of their family and local
villagers rushed to the place of occurrence and seeing them the
assailants fled away. Thus, it is submitted by the learned Advocate
on behalf of the appellant that as per the initial statement of the
informant, he reached the place of occurrence after the victim
received blows on his head allegedly with the help of gadasa and
spade.
12. Now, he refers to the evidence of the informant, who
was examined as PW-6. In his evidence, he deposed that
Ramadhar Choubey assaulted the head of the deceased with the
help of an axe, and Deepak Choubey assaulted him with the sharp-
edged part of a spade. On being assaulted, Anil Choubey fell down
on the ground. The informant, his mother, aunt, brother Satish
Kumar Choubey, Umesh Paswan, Ganesh Mukhiya, and other
people of the village came to the place of occurrence. The injured
uncle of the informant was taken to Bettiah MJK Hospital. After
Patna High Court CR. APP (DB) No.308 of 2018 dt. 04-11-2025
initial treatment, he was referred to PMCH. Referring to the
statement made by PW-6, the learned Advocate on behalf of the
appellant submits that it was not possible for the informant to see
the occurrence because the deceased allegedly received injuries on
his head and on the backside of his left ear before the arrival of
PW-6 at the place of occurrence. He also made the same argument
in respect of the other witnesses except PW-2, namely, Lalan
Thakur.
13. PW-2, Lalan Thakur, was declared hostile by the
prosecution. According to PW-6, the deceased was shaving his
beard on his own. On the contrary, PW-2 was examined by the
prosecution as an eye-witness to prove that PW-2 was shaving the
beard of the deceased, Anil Choubey. Thus, according to the
prosecution, PW-2 was present at the time of occurrence.
However, PW-2 did not support the prosecution's case. On the
other hand, it was stated by PW-2 on oath that while shaving the
beard of the deceased, Anil Choubey, he went to urinate, and while
going to urinate, Anil Choubey fell down on a rocky substance and
sustained multiple bleeding injuries on his head. As he did not
support the prosecution's case, he was declared hostile by the
prosecution.
Patna High Court CR. APP (DB) No.308 of 2018 dt. 04-11-2025
14. The learned Advocate on behalf of the appellant
submits that the evidence on record shows two contradictory
incidents. It is not in dispute that on the date and time of the
occurrence, Anil Choubey received multiple injuries, while some
of the witnesses stated that he received the above-mentioned
injuries by being assaulted by the appellant and other accused
persons. PW-2 shows that the deceased was injured by falling on a
rocky substance inside his house.
15. It is further urged by the learned counsel for the
appellant that when two views appear in the evidence on record, it
was incumbent upon the prosecution to establish the motive of the
accused persons to commit such offence. The prosecution failed to
establish the motive of the accused persons in committing the
alleged offence. In order to substantiate his contention, he refers to
the cross-examination of PW-6, where he stated that the name of
the brother of the deceased, Anil Choubey, is Chandra Bhusan
Choubey, and he works in the Police Department. The witness
admitted that a long-standing property dispute is going on between
the deceased and the accused persons. The deceased and his family
members obstructed Ramadhar Choubey and his family members
from using a piece of land situated by the side of the house of Anil
Patna High Court CR. APP (DB) No.308 of 2018 dt. 04-11-2025
Choubey for ingress and egress. Over the said incident, a dispute
cropped up between the parties.
16. It is found from the cross-examination of PW-6 that
one Jagdish Choubey was the grandfather of the informant.
Jagdish Choubey had two sons, i.e., Chandra Bhusan Choubey and
Anil (deceased). The informant, Sanjeev Choubey, is the son of
Chandra Bhusan Choubey. The witness also stated that Ramadhar
Choubey is the son of one Bamdev Choubey. One Umakant
Choubey is the son of the uncle of Ramadhar Choubey. Chandra
Bhusan Choubey, who is the father of the informant, is an agnate
of accused Ramadhar. According to the informant, disputes
between the parties cropped up over the share of family property.
As a result, Anil Choubey was allegedly assaulted to death by the
appellant and other accused persons. It is submitted by the learned
Advocate for the appellant that the prosecution failed to prove any
dispute over the landed property of the parties. No civil or criminal
case was ever filed by any of the parties against the other
concerning the land. No proceeding under Sections 107, 144, or
145 of the CrPC was initiated against either of the parties over the
property dispute. Therefore, the prosecution hopelessly fails to
prove the motive of the case.
Patna High Court CR. APP (DB) No.308 of 2018 dt. 04-11-2025
17. The learned Advocate for the appellant next submits
that PW-1, namely, Umesh Paswan, is a co-villager who stated in
his evidence that on 15th December 2002, at about 9:30 A.M., he
was returning home after shaving his beard at the house of one
Laddu Thakur. When he reached in front of the door of Anil, he
saw the appellant with a spade, Ramadhar with an axe, and Dinesh
with a Bhala (spear) in their hands, assembled in front of the door
of Anil Choubey. They were abusing him. At that time, Anil was
shaving his beard on his own. Deepak assaulted him with the help
of the spade. Ramadhar assaulted Anil on his head with the help of
an axe, and Dinesh Choubey assaulted him with the help of a spear
(Bhala). As a result of the assault, Anil fell down on the ground,
blood was oozing from his wound, and he became unconscious.
PW-1 brought Anil by a horse-cart (Tanga) to Gauripur Market
along with Sanjeev Kumar Choubey (PW-6) and three other
villagers. From Gauripur Market, the injured was taken to Bettiah
Hospital. The injured received initial treatment at M.J.K. Hospital,
Bettiah, and thereafter, he was referred to PMCH for better
treatment. From Bettiah Hospital, PW-1, PW-6, and a doctor,
whose name the witness does not know, brought the injured to
Patna by an ambulance. He was admitted to PMCH on 15 th
December 2002, at about 8:30 P.M. In the early morning of the
Patna High Court CR. APP (DB) No.308 of 2018 dt. 04-11-2025
next day, Anil Choubey succumbed to his injury. On 16th
December 2002, at about 11:00 A.M., the police officer attached to
Pirbahore P.S., Patna, came to the hospital and recorded the
statement of PW-6. It was read over and explained to him, and
Sanjeev Kumar Choubey put his signature on his statement after
finding it to be correct.
18. The learned Advocate on behalf of the appellant
further submits that the FIR was registered on 19 th December 2002
on the basis of the statement made by PW-6, namely, Sanjeev
Kumar Choubey, on 16th December 2002. Thus, the FIR was
lodged after a long delay from the occurrence. There is no
explanation as to why no FIR was lodged at Bettiah; therefore, the
FIR story ought not to be believed as absolutely truthful on the
ground that in a case of a belated FIR, there is every chance of
concoction and false implication of innocent persons in a criminal
case.
19. The learned Advocate on behalf of the appellant
further refers to the cross-examination of PW-2 as well as the
cross-examination of the I.O., who deposed in this case as PW-7,
to show that PW-2 stated to the I.O. that he came to the place of
occurrence after hearing the hue and cry of Anil Choubey.
Patna High Court CR. APP (DB) No.308 of 2018 dt. 04-11-2025
Therefore, there is a conscious improvement in the evidence of
PW-2 to prove that he was an eye-witness to the occurrence.
20. PW-3, Satish Kumar Choubey, is the brother of PW-
6.
21. PW-4, Babita Kuwar is the wife of the deceased.
22. Though PW-3 described himself as an eye-witness,
he stated to the I.O. that he did not see any of the accused
assaulting his uncle, Anil Choubey, but he came to know that
Deepak Choubey assaulted him with the help of a spade.
Therefore, PW-3 also made a false statement before the Court on
oath to show that he was one of the eye-witnesses of the
occurrence.
23. PW-4, Babita Kuwar, is admittedly not an eye-
witness because she stated that she came to the place of occurrence
after hearing the hue and cry of Satish Choubey.
24. There is no confusion that PW-5 Ganesh Mukhiya
came to the place of occurrence after the incident and he did not
see the occurrence.
25. PW-7 is the I.O. of the case and PW-8 is the autopsy
surgeon who conducted the post mortem over the dead body of the
deceased and found the following injuries on the head of the
deceased: -
Patna High Court CR. APP (DB) No.308 of 2018 dt. 04-11-2025
"1. Injury No. 1- One half inch long
stitched wound was found on the left eyebrow.
2. Injury No. 2- One 1.5 inch long stitched
wound just behind the left ear.
3. Injury No. 3- One ½ inch long stitched
wound was found ½ inch above the injury no. 2.
4. Injury No. 4- One ¾ inch long stitched
wound found 2.5 inch above and behind the left ear.
5. Injury No. 5- One 1.75 inch long
stitched wound was found 3.5 inch above the left ear
on the left parietal area."
26. On examination, it was opined by the PW-8 that the
said injuries were ante mortem, grievous, and dangerous to life in
ordinary course of nature.
27. The learned Advocate on behalf of the appellant
further submits that the appellant was not properly examined under
Section 313 of the CrPC and of incriminating circumstances were
not specifically and separately asked to the appellant. On the
contrary, a chain of questions was asked in the following manner:-
"Q. There is evidence against you that on 15th December,
2002, at 9:30 A.M. at village Parsauni Ghogha, P.S.- Balthar,
District- West Champaran, you along with two other accused,
namely, Dinesh Choubey and Ramadhar Choubey came in front of
the entrance door of Anil Choubey and you assaulted Anil
Patna High Court CR. APP (DB) No.308 of 2018 dt. 04-11-2025
Choubey on his head with the help of spade and committed
murder, what do you say?
28. It is submitted by the learned Advocate for the
appellant that the examination of an accused under Section 313 of
the CrPC is very important because the said provision is
incorporated in the Code of Criminal Procedure on the laudable
principle of audi alteram partem. The examination of an accused
under Section 313 of the CrPC is the stage when the accused gets
an opportunity to explain the incriminating circumstances
appearing against him in a criminal case, especially in a case
where the accused faced trial under the charge of Section 302 of
the IPC. This type of examination under Section 313 of the CrPC
is absolutely perverse and bad in law. In support of his contention,
he refers to a decision of the Hon'ble Supreme Court in Ramji
Prasad Jaiswal and Ors. vs. State of Bihar, reported in 2025
INSC 738. In this decision, the Hon'ble Supreme Court relied on
its previous decision in Raj Kumar Singh v. State of Rajasthan,
reported in (2013) 5 SCC 722, and recorded the observation of
the above-mentioned decision contained in paragraph 30 of the
said judgment. In order to appreciate this case, it is necessary to
quote the following observation relied upon by the Hon'ble
Supreme Court in Ramji Prasad Jaiswal (supra).
Patna High Court CR. APP (DB) No.308 of 2018 dt. 04-11-2025
"30. In a criminal trial, the purpose of
examining the accused person under Section 313 CrPC is
to meet the requirement of the principles of natural
justice i.e. audi alteram partem. This means that the
accused may be asked to furnish some explanation as
regards the incriminating circumstances associated with
him, and the court must take note of such explanation.
In a case of circumstantial evidence, the same is essential
to decide whether or not the chain of circumstances is
complete. No matter how weak the evidence of the
prosecution may be, it is the duty of the court to examine
the accused, and to seek his explanation as regards the
incriminating material that has surfaced against him.
The circumstances which are not put to the accused in
his examination under Section 313 CrPC, cannot be used
against him and have to be excluded from
consideration."
29. In paragraph no. 33 of the Ramji Prasad (supra), the
Hon'ble Supreme Court summarized the law as regards the
Section 313 of the CrPC relying on a previous decision in the case
of Raj Kumar @ Suman Vs. State of NCT Delhi reported in
2023(17) SCC 95.
30. The law as regards Section 313 of the CrPC is
following: -
"313. Power to examine the
accused.--(1) In every inquiry or trial, for the
purpose of enabling the accused personally to
explain any circumstances appearing in the
evidence against him, the Court--
Patna High Court CR. APP (DB) No.308 of 2018 dt. 04-11-2025
(a) may at any stage, without
previously warning the accused put such
questions to him as the Court considers
necessary;
(b) shall, after the witnesses for the
prosecution have been examined and before he
is called on for his defence, question him
generally on the case:
Provided that in a summons-case,
where the Court has dispensed with the
personal attendance of the accused, it may
also dispense with his examination under
clause (b).
(2) No oath shall be administered to
the accused when he is examined under sub-
section (1).
(3) The accused shall not render
himself liable to punishment by refusing to
answer such questions, or by giving false
answers to them.
(4) The answers given by the
accused may be taken into consideration in
such inquiry or trial, and put in evidence for
or against him in any other inquiry into, or
trial for, any other offence which such answers
may tend to show he has committed. 2
(5) The Court may take help of
Prosecutor and Defence Counsel in preparing
relevant questions which are to be put to the
accused and the Court may permit filing of
Patna High Court CR. APP (DB) No.308 of 2018 dt. 04-11-2025
written statement by the accused as sufficient
compliance of this section."
31. On careful perusal of the above-mentioned decision
in Ramji Prasad Jaiswal (supra), we are obliged to record that if
any irregularity in putting the material circumstance to the accused
does not result in a failure of justice, it becomes a curable defect.
However, while deciding whether the defect can be cured, one of
the considerations will be the passage of time from the date of the
incident. In case such irregularity is curable, even the appellate
court can question the accused on the material circumstance which
was not put to him.
32. On the same point, he refers to another decision, in
the case of Naresh Kumar Vs. State of Delhi reported in AIR
2024 SC 3233. Paragraph 17 of the said judgment is relevant and
is quoted below:
"17. In view of the circumstances obtained
in this case, factually and legally, it is also relevant
to refer to paragraph 20 of the decision in Raj
Kumar's case (supra) and it reads thus:-
"21. Even assuming that the
defect or irregularity was curable, the
question is whether today, the appellant-
accused can be called upon to explain the
said circumstance. More than 27 years
have passed since the date of the incident.
Patna High Court CR. APP (DB) No.308 of 2018 dt. 04-11-2025
Considering the passage of time, we are of
the view that it will be unjust now at this
tage to remit the case to the Trial Court for
recording further statement of the appellant
under Section 313 of CrPC. In the facts of
the case, the appellant cannot be called
upon to answer something which has
transpired 27 years back. There is one
more aspect of the matter which persuaded
us not to pass an order of remand. The said
factor is that the appellant has already
undergone incarceration for a period of 10
years and 4 months."
33. The learned Advocate on behalf of the State, on the
other hand, submits that the prosecution has been able to prove the
charge against the appellant. PW-2, Umesh Paswan, is an
independent eye-witness who stated that the present appellant
assaulted Anil Choubey on his head with the help of a spade, as a
result of which he sustained bleeding injuries. All other witnesses
corroborated the said fact. It is true that except Umesh Paswan and
Ganesh Mukhiya, other witnesses are close relatives of the
deceased and obviously interested in the outcome of the case. It is
submitted by the learned counsel for the State that the interest of
the witnesses who are close relatives of the deceased does not
suggest that they would falsely implicate the accused persons. On
the contrary, they are interested to see that the right person(s) is/are
Patna High Court CR. APP (DB) No.308 of 2018 dt. 04-11-2025
brought to trial and he/they should be adequately punished. In the
instant case, the evidence on record is sufficient to hold that the
appellant gave a blow with a spade on the head of the deceased,
causing bleeding injury. From the evidence of the Autopsy
Surgeon, it is found that the injuries which the deceased received
were sufficient to cause the death of a person in the ordinary
course of nature. Considering such circumstances, there is no
reason to interfere with the judgment of the trial court.
34. Having heard the learned Advocates on behalf of the
respective parties and upon careful consideration of the evidence
on record as well as the arguments advanced by the learned
counsels for both parties, we would like to point out, at the outset,
that the investigation of this case is not at all satisfactory. The I.O.
did not try to find out and seize the offending weapons. She did
not find it necessary to examine the residents of the nearby houses
to ascertain the facts of the case. She only relied upon the evidence
of the witnesses, who are mostly relatives and very much
interested in the case. The I.O. did not try to find out the motive
behind the alleged incident. It is found from the cross-examination
of the witnesses on behalf of the prosecution that there was a long-
standing property dispute between the parties. There is absolutely
Patna High Court CR. APP (DB) No.308 of 2018 dt. 04-11-2025
no evidence as to whether the alleged incident took place as a
result of a property dispute or any other reason.
35. From the cross-examination of the I.O., we find that
though PW-1 and PW-5 claimed to be the eye-witnesses of the
occurrence, they stated to the I.O. that they appeared at the spot
after hearing the "Halla" and found the injured Anil Choubey lying
in a pool of blood in front of his door. When the court finds that
the related witnesses fall into the category of 'neither wholly
reliable nor wholly unreliable,' corroborative evidence is
necessary. The absence of corroborative evidence and other
material inconsistencies in the prosecution's case renders the
prosecution's version unreliable.
36. Even if we assume in the instant case that the so-
called eye-witnesses did not see the occurrence, they saw the
injured Anil Choubey lying at the place of occurrence in a pool of
blood with multiple head injuries and found the accused persons,
including the appellant, at the place of occurrence, being armed
with a spade, axe, and spear. There were no other persons with
arms. All the witnesses, except PW-2, stated in the same voice that
the accused persons assaulted Anil Choubey and he succumbed to
his injuries on the following day of the occurrence. At this stage,
we are not unmindful to note that the I.O. did not recover any
Patna High Court CR. APP (DB) No.308 of 2018 dt. 04-11-2025
weapon from the possession of the accused, including the
appellant.
37. We have already stated the injuries found by the
Autopsy Surgeon on the head of the deceased. The measurement
of the injuries raised a doubt in our mind as to whether those were
caused by a spade. Injury No. 1 is a ½-inch-long stitched wound
over the left eyebrow. Injury No. 2 is a 1.5-inch-long wound just
behind the left ear. It is stated by the witnesses that Injury No. 2
was caused by Dinesh Choubey with the help of a Bhala (spear).
Injury No. 3 was a ½-inch-long stitched wound found ½ inch
above Injury No. 2, behind the left ear. So, it is assumed that the
said injury was caused by the spear. Injury No. 4 was a ¾-inch-
long stitched wound found 2.5 inches above and behind the left
ear. Measurement of Injury No. 5 was a 1.75-inch-long stitched
wound found 3.5 inches above the left ear and on the left parietal
region. After removal of stitches and scalp, the Autopsy Surgeon
found blood clots and comminuted fractures of the frontal,
occipital, left temporal, and parietal bones. After opening the
cranial cavity, extra-dural and subdural hemorrhage was found.
38. The Autopsy Surgeon opined that the above-
mentioned injuries were ante-mortem, grievous, and dangerous to
life in the ordinary course of nature. Any further details about the
Patna High Court CR. APP (DB) No.308 of 2018 dt. 04-11-2025
cause and consequences of the above-mentioned injuries may be
procured from the place where he was treated previously.
39. The I.O. did not collect the injury report or produce
the medical officer of the Bettiah Hospital who initially treated the
deceased. On careful consideration of the post-mortem report, we
find that Injury No. 2 and 3 might have been caused by a spear.
The measurement of injuries does not primarily suggest that any of
the remaining injuries were caused by a spade, because, the sharp-
edged portion of the spade is at least 6 to 8 inches long. If a person
is struck by the sharp-edged portion of a spade causing fracture of
the occipital, left temporal, and parietal bones, the length of the
injuries caused by the spade would have been longer than what
was found on the person of the deceased. In cross-examination, the
autopsy surgeon stated that he could not say about the nature of the
weapon used to cause the injuries. Last but not least, we think it
necessary to mention that the appellant was charged with
committing an offence under Section 302/34 of the IPC. The trial
of the co-accused, Ramadhar Choubey, was held in Sessions Trial
No. 342 of 2009 by the same Trial Judge who convicted and
sentenced the appellant to imprisonment for life for the offence
under Section 302/34 of the IPC. It is needless to say that Section
Patna High Court CR. APP (DB) No.308 of 2018 dt. 04-11-2025
34 of the IPC speaks about common intention. Section 34 of the
IPC runs thus:
"34. Acts done by several persons in
furtherance of common intention. --When a criminal
act is done by several persons in furtherance of the
common intention of all, each of such persons is
liable for that act in the same manner as if it were
done by him alone."
40. It is no longer res integra that, to attract Section 34
of the IPC, two conditions are necessarily required to be proved: -
(i) a criminal act should have been done, not by one
person, but more than one person
ii. doing of every such individual act cumulatively
resulting in the commission of the criminal offence should have
been in furtherance of the common intention of such persons."
41. It is obvious that to attract Section 34 of the IPC, it is
not necessary that each one of the accused must assault the
deceased. It is enough if it is shown that they shared a common
intention to commit the offence and, in furtherance thereof, each
one played a particular role by doing separate acts, similar or
different. In the instant case, the prosecution came up with a story
that, in furtherance of the common intention of the accused to
cause the death of Anil Choubey, the appellant and the other
accused persons assaulted him with a spade, axe, and spear.
Patna High Court CR. APP (DB) No.308 of 2018 dt. 04-11-2025
However, the same Trial Judge acquitted Ramadhar Choubey of
the charge under Section 302 of the IPC. It is no longer res integra
that Section 34 has been enacted on the principle of joint liability
in the doing of a criminal act. Section 34 is only a rule of evidence
and does not create a substantive offence. The distinctive feature
of this Section is the element of participation in the action. The
liability of a person for an offence committed by another in the
course of a criminal act perpetrated by several persons arises under
Section 34 if such criminal act is done in furtherance of a common
intention of the persons who joined in committing the crime, in
order to bring home the charge of common intention, the
prosecution has to establish by evidence that there was a plan or
meeting of minds of all the accused persons to commit the offence
for which they were charged, with the aid of Section 34 of the IPC.
The true concept of this Section is that if two or more persons
intentionally do an act jointly, the position in law is just the same
as if each one of them had done it individually by himself. In
support of our observation, we may refer to the decision of the
Hon'ble Apex Court in the case of Sachin Jana v. State of W.B.,
reported in (2008) 3 SCC 390. When a charge is framed on the
basis of joint liability under Section 34 of the IPC and one of the
accused (Ramadhar Choubey) is acquitted, joint liability fails.
Patna High Court CR. APP (DB) No.308 of 2018 dt. 04-11-2025
Now comes the question as to whether the particular act
committed by the appellant constitutes an offence under Section
302 of the IPC.
42. We have elaborately discussed the nature of injuries.
The measurements of injuries do not suggest that the appellant
made the blow with the help of a spade on the head of the
deceased with the intention to cause death or to cause such bodily
injury to be likely to cause death. At the same time, we find that
the deceased died of the injuries caused by the appellant due to the
reason of long-standing property dispute. The incident falls within
Exception 4 of Section 300 of the IPC which says "Culpable
homicide is not murder if it is committed without premeditation in
a sudden fight in the heat of passion upon a sudden quarrel and
without the offender's having taken undue advantage or acted in a
cruel or unusual manner." Therefore, we are of the view that the
trial court failed to appreciate the evidence on record properly and
convicted and sentenced the accused under Section 302 of the IPC.
43. We are of the view that the appellant committed an
offence under Section 304 Part II of the IPC, and he has been
convicted for committing an offence under Section 304 Part II of
the IPC.
Patna High Court CR. APP (DB) No.308 of 2018 dt. 04-11-2025
44. It is submitted by the learned Advocate on behalf of
the appellant that the appellant has been in custody for about 9
years. The incident took place in 2002, and for the last 23 years,
the appellant has suffered a great deal of trauma and, ultimately,
incarceration for 9 years.
45. Considering the circumstances, the appellant is
convicted under Section 304, Part II of the IPC and sentenced to
undergo rigorous imprisonment for 8 years, along with a fine of
Rs. 5,000/-, in default of which he shall undergo further
imprisonment for 3 months.
46. The period of incarceration suffered by the appellant
shall be set off against the actual punishment.
47. With the above order, the instant Criminal Appeal
(DB) No. 308 of 2018 is disposed of.
(Bibek Chaudhuri, J)
( Dr. Anshuman, J)
Suraj Dubey/-
AFR/NAFR NAFR
CAV DATE 31.10.2025
Uploading Date 04.11.2025
Transmission Date 04.11.2025
