Patna High Court
Kamakhya Singh And Anr vs State Of Bihar on 11 September, 2025
Author: Anshuman
Bench: Anshuman
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No. 393 of 1995
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1. Kamakhya Singh
2. Binod Singh
Sons of late Haridyar Singh
Both residents of village - Barni, Police Station - Charpokhari, District -
Bhojpur
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Anant Kumar Bhaskar, Advocate
Mr. Ravi Shankar Roy, Advocate
Mr. Binod Kumar Singh, Advocate
For the Respondent/s : 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 : 11-09-2025
1. The instant appeal is directed against the
judgement and order of conviction and sentence passed by
the learned 2nd Additional Sessions Judge, Bhojpur at Ara on
27th of November, 1995 in Sessions Trial No. 271 of 1991,
Patna High Court CR. APP (DB) No.393 of 1995 dt.11-09-2025
2/45
whereby and whereunder, the appellants were held guilty and
convicted of the charges under Section 302 of the Indian
Penal Code and also under Sections 149/302 of the Indian
Penal Code and sentenced to suffer rigorous imprisonment for
life on the above two heads of charge.
2. Accused Binod Singh was further sentenced to
undergo rigorous imprisonment for 8 years for the offence
punishable under Section 307 of the Indian Penal Code. Both
the appellants were further sentenced to undergo rigorous
imprisonment for three years for the offence punishable under
Section 148 of the I.P.C. and Section 27 of the Arms Act,
1959. It was directed by the Trial Court that substantive
sentences of rigorous imprisonment shall run concurrently.
3. Sworn of unnecessary details, the facts, leading
to the present appeal is as follows: -
4. One Baban Prasad, son of Jagannath Prasad,
since deceased, made a statement before the Officer Incharge
of Charphokhari Police Station on 28th of August, 1990 at
about 09.00 P.M. that on the self-same date at around 08.00
P.M., while he was sitting in the inner courtyard of his house
Patna High Court CR. APP (DB) No.393 of 1995 dt.11-09-2025
3/45
and the entrance door of the house was open, he suddenly
heard sounds of two gun-shots from outside. Thereafter,
continuous firing started. Out of fear, the brother of the
informant Hareshwar Prasad and the informant hid
themselves behind the southern door of their house. From
there, they saw Kamakhya Singh, Binod Singh and Kamlesh
Bhat, all residents of village-Balwan, being armed with a rifle,
a pistol and a double barrel gun respectively, and one
unknown person with a rifle in his hand, entered into their
house. Accused Kamakhya Singh fired with rifle at his
younger brother, Baleshwar Prasad, who was sitting at the
door way of the western room in the inner courtyard. On
being hit, he received gun-shot injury on his arm. Accused
Kamlesh Bhat fired at the younger brother of the informant
Umesh Prasad and his nephew Dharmendra Prasad with the
help of his double barrel gun and both of them sustained gun-
shot injury on their legs.
5. After this, all four persons went on firing inside
the house and while making their exist from the northern side
of the house, they also opened fire at the father of the
Patna High Court CR. APP (DB) No.393 of 1995 dt.11-09-2025
4/45
informant, namely, Jagannath Kahar, who died at the spot,
receiving bullet injury. The informant found the dead-body of
his father lying on the ground in pool of blood. When he came
out of the house, he saw his grand father Banwari Kahar lying
dead in pool of blood by the side of a hand pump in front of
their house. After causing massacre as aforesaid, the
appellants fled away towards eastern side while firing. It was
also stated by the informant that there were, in all, 8
miscreants, armed with rifle, guns and other fire arms. Except
the accused persons named in the F.I.R., he could not identify
any other person.
6. The informant also stated that the houses of
accused Kamakhya Singh and Binod Singh are situated 150-
200 away from their house on the north eastern direction.
About 10 days before the incident, Kamakhya Singh ate some
sweets from the shop of the brother of the informant
Hareshwar Prasad, but did not pay the money for the said
sweets. Over the said incident, an altercation took place
between Hareshwar Prasad and Kamakhya Singh and during
such altercation, accused Kamakhya Singh threatened him to
Patna High Court CR. APP (DB) No.393 of 1995 dt.11-09-2025
5/45
wipe out all the family members of the informant.
7. On the basis of the said complaint, police
registered Charphokhari P. S. Case No. 75 of 1990, dated
28th of August, 1990 against the F.I.R. named and five
unknown accused persons under Sections
147/148/149/452
/302/307 of the Indian Penal Code and
Section 27 of the Arms Act, 1959 and took up the case for
investigation. During investigation, the police visited the place
of occurrence, recorded statement of the witnesses, seized
some articles under a seizure list, dated 28 th of August, 1990,
viz., five empty cartridges fired, on which 30.06 is marked at
their bottom; fired empty cartridges, on which Indian
Ordinance FOC FORY K.F special is marked; and WAD of fired
bullet of 12 bored-gun; and also collected injury report of the
injured persons and post-mortem report of the deceased
Jagannath Kahar and Banwari Kahar and finally submitted
charge-sheet under Sections 147/148/149/452/302/307 of
the Indian Penal Code and Section 27 of the Arms Act, 1959.
8. After the case was committed to the Court of
Sessions, the learned Sessions Judge, Bhojpur at Ara
Patna High Court CR. APP (DB) No.393 of 1995 dt.11-09-2025
transferred the case records to the 2nd Court of the learned
Additional Sessions Judge, Ara for trial and disposal. The
learned Additional Sessions Judge, vide order, dated 26th of
August, 1991 framed the charge separately against accused
persons, namely, Kamakhya Singh, who faced trial under the
charge of offence punishable under Sections 302/149 of the
IPC and Section 148 of the IPC. The appellant Binod Singh
was charged for the offence punishable under Sections 307,
302/149 of the IPC. Accused Birendra Singh was charged
under Sections 302/149 and 148 of the IPC. Accused
Kamlesh Bhat faced trial under the charge of Sections 307,
302/34 of the IPC. All the accused persons also faced trial
under the charge of Section 27 of the Arms Act.
9. In order to bring home the charge against the
accused persons, prosecution examined 9 witnesses. Amongst
the said witnesses, P.W. 1 to P.W. 5 are the close relatives of
the deceased persons. P.W. 5 is the informant. P.W. 6, Dr.
Kumar Ganga Nand is the Medical Officer, who medically
treated and prepared injury reports of the persons injured in
the alleged incident. P.W. 7 Srikant Upadhyaya is the
Patna High Court CR. APP (DB) No.393 of 1995 dt.11-09-2025
Investigating Officer of the case. P.W. 8 Dr. Madan Mohan
Verma is the autopsy surgeon who held post-mortem
examination over the dead body of Banwari Kahar. P.W. 9
Murat Ram proved the post-mortem report of Jagannath
Kahar.
10. During trial, the original FIR, seizure list, injury
reports, post-mortem reports and the formal FIR were
marked exhibits which we propose to refer subsequently.
11. At the outset, we have narrated the incident, as
reported by the informant (P.W. 5) to the police on 28 th of
August, 1990 at about 09:00 P.M. It appears from the
materials on record as well as the FIR that the incident took
place at about 08:00 P.M. and the statement of the informant
was recorded within one hour of the incident.
12. Learned Advocate for the appellants assailed
the impugned judgement on the following grounds:
(i) There are material contradictions between the
FIR and the statement of the witnesses made before the
Investigating Officer under Section 161 of the Cr.P.C. as well
as before the Court. In view of such material contradictions,
Patna High Court CR. APP (DB) No.393 of 1995 dt.11-09-2025
evidence of the witnesses ought not to have been believed by
the Trial Court as gospel truth;
(ii) Secondly, all the witnesses on behalf of the
prosecution are members of the same family. If the
prosecution case is believed, then it is found that a group of
eight miscreants armed with lethal weapons, raided the house
of the informant, committed murder of his father and grand-
father by gun-shot injury, opened fire at his brother and
brother's son and while going away, they were firing
indiscriminately to create terror. However, not a single
villager came forward to support the prosecution case.
Prosecution Witnesses No. 1 to 5 are close relatives of the
deceased. Three of them are injured and they are highly
interested persons. Therefore, the trial Court committed a
gross error in holding the appellants guilty for committing
offence under Section 302 of the IPC read with Section 149
of the IPC and other penal provisions only on the basis of the
evidence of interested witnesses.
(iii) Thirdly, it was submitted by the learned
Advocate for the appellants that indisputably a quarrel broke
Patna High Court CR. APP (DB) No.393 of 1995 dt.11-09-2025
out between one Hareshwar Prasad and accused Kamakhya
Singh and Kamlesh Bhat over non-payment of price of sweets
which they ate from the shop of P.W. 1. Therefore, there was
previous enmity between the parties, so the accused persons
might be falsely implicated in the case.
(iv) Lastly, the learned Advocate for the appellants
urged that the incident took place at about 08:00 P.M. at
night on 28th of August, 1990. In the FIR, the informant did
not state that lanterns were burning on the date and time of
occurrence inside the house and specially near the place of
occurrence. However, in course of evidence, the witnesses
developed their version saying that they could identify the
appellants by the light of lanterns. The Investigating Officer
did not even seize any lantern from the place of occurrence.
Therefore, prosecution failed to prove hopelessly regarding
the source and light by virtue of which the witnesses allegedly
identified the appellants.
13. It is also submitted by the learned Advocate for
the appellants that the prosecution failed to establish the
charge under Sections 148 and 149 of the IPC. There is
Patna High Court CR. APP (DB) No.393 of 1995 dt.11-09-2025
absolutely no evidence that the accused persons were five or
more in number and they found unlawful assembly in
prosecution of their common object to murder Jagannath
Kahar and Banwari Kahar and gun-shot injury to Baleshwar
Prased, Umesh Prasad and Dharmendra Prasad.
14. The learned Advocate on behalf of the
prosecution, on the other hand, has supported the impugned
judgement and submits that witnesses on behalf of the
prosecution were able to bring home charge against the
appellants beyond any shadow of reasonable doubts and they
were rightly convicted and sentenced by the learned Trial
Court.
15. We have duly considered the arguments
advanced by the learned counsels for the appellants and the
respondent.
16. At the outset, we propose to discuss as to
whether the statement of P.W. 5 Baban Prasad, which was
treated as F.I.R. suffers from any infirmity or material
contradictions with his evidence or not.
17. It is needless to say that the learned Advocate
Patna High Court CR. APP (DB) No.393 of 1995 dt.11-09-2025
for the appellants in course of his argument refers to the
statements of almost all the witnesses on behalf of the
prosecution, who deposed about the incident, in order to show
contradictions with the F.I.R. However, it is absolutely settled
that the F.I.R. is not a substantive piece of evidence and the
contents of the FIR can be contradicted with the subsequent
statement of the F.I.R. maker only.
18. Therefore, we are under obligation to examine
the FIR in the light of the evidence of P.W. 5 Baban Prasad.
19. In his evidence, P.W. 5 has stated that on the
date of occurrence at about 08:00 p.m. he was present at the
Southern Courtyard of his house. The main gate of the house
was open, suddenly he heard sound of firing from outside and
rushed towards northern courtyard. When he reached near
the door of the courtyard, he saw five persons, of whom he
identified the appellants and one Kamlesh Bhat entering into
their house being armed with rifle, country made pistol and
double barrel gun. He saw Kamakhya Singh opening fire with
the help of his rifle on his father, who was at that point of
time taking food. Appellant-Binod Singh fired from his pistol,
Patna High Court CR. APP (DB) No.393 of 1995 dt.11-09-2025
causing bullet injury on the right arm of his younger brother-
Baleshwar Prasad. Then Kamlesh Bhat fired at his younger
brother-Umesh Prasad and nephew-Dharmendra, both of
whom sustained gun shot injury on his legs. After causing
death of Jagannath Kahar and injuring others, the miscreants
fled away while shooting. After the said miscreants departed,
the informant and other members of the family came out of
the house and they saw their grandfather Banwari Kahar lying
dead near the hand-pump situated outside the house
receiving gun shot injury.
20. It is submitted by the learned Advocate for the
appellants that in the FIR, PW-5 did not state that accused-
Kamakhya Singh committed murder of his father. On the
contrary, he said that Kamakhya fired with the help of his rifle
at his younger brother Baleshwar Prasad, who was sitting at
the door way of the western room in the inner courtyard.
21. Thus, there is material contradictions in the
statement made by PW-5 in his F.I.R. and the subsequent
statement made on oath at the time of Trial. PW-5 developed
the prosecution case by describing himself as the eye witness
Patna High Court CR. APP (DB) No.393 of 1995 dt.11-09-2025
of the death of his father-Jagannath Kahar.
22. In view of such circumstances, evidence of PW-
5 ought not to have been taken into consideration.
23. The learned Advocate on behalf of the
appellants wanted to draw the contradictions between the
statement recorded as FIR and the evidence of PW-1 to PW-
4.
24. This is not at all permissible under the law of
evidence. It is already recorded that an FIR is not a
substantive piece of evidence and can only be used to
corroborate the statement of the FIR maker under Section
157 of the Evidence Act or to contradict it under Section 145
of the Evidence Act. It cannot be used as evidence against the
maker at the trial, nor to corroborate or to contradict the
evidence of other witnesses. The learned Advocate for the
appellants is absolutely misconceived when he wanted to
show from the evidence of PW-1 that there is a contradiction
between the FIR and the evidence of PW-1 on the point as to
his place of stay in the house at the time of incident.
25. First Information Report is the report at the first
Patna High Court CR. APP (DB) No.393 of 1995 dt.11-09-2025
instance after the occurrence to set criminal administration of
justice into motion.
26. In the instant case, statement made by PW-5
before the police is required to be considered under the
prevailing facts and circumstances, viz. the residents of the
house of Jagannath Kahar were sitting at different places,
some of them were taking their food at about 08:00 p.m.,
when the miscreants being armed with lethal weapons raided
the house and committed murder of two persons and caused
gun shot injury to three other inmates of the house. Hearing
the sound of firing, the women inmates of the house started
to raise alarm. Obviously, they tried to take shelter in
different parts of the house to save themselves. At this stage,
it is very obvious that the inmates saw different parts of
incident differently and they stated the said fact. It is not
omitted in the FIR that Banwari Kahar and Jagannath Kahar
were not murdered by the appellants. It is also not stated that
Baleshwar Prasad, Umesh Prasad and Dharmendra Prasad
were not injured by firing.
27. Under such circumstances, it is not expected
Patna High Court CR. APP (DB) No.393 of 1995 dt.11-09-2025
that the informant would make a statement of the incident in
mathematical precision stating what had happened in
seriatim.
28. For the reasons stated above, we are not in a
position to hold that the FIR suffers from concoction,
exaggeration and infirmity. Moreover, contradictions in the
evidence of PW-5 referred to by the learned Advocate for the
appellants cannot also be treated as material contradiction.
29. In Shyamal Ghosh Vs. State of West
Bengal, reported in (2012) 7 SCC 646, the name of the
accused was not stated in the F.I.R. He was not identified in
police custody. He was also not named by PW-8 in his
statement. The Hon'ble Supreme Court relied on the
statement of PW-8 with regard to the role of the accused, on
the basis of his identification in Court.
30. The Hon'ble Supreme Court in Tika Ram Vs.
State of Madhya Pradesh, reported in (2007) 15 SCC
760, while rejecting the argument that name of the accused
is not mentioned in the F.I.R. held that this would not by itself
be sufficient to reject the prosecution case as against the
Patna High Court CR. APP (DB) No.393 of 1995 dt.11-09-2025
accused. The Court further held that where the prosecution is
able to establish its case, such omission by itself would not be
sufficient to give benefit of doubt to the accused.
31. In the instant case, appellant-Kamakhya Singh
is not entitled to get benefit of doubt on the same logic laid
down by the Apex Court in the above-mentioned decision on
the ground that in the F.I.R. his name was not mentioned as
the assailant of Jagannath Kahar.
32. We are in agreement with the learned Advocate
for the appellants that PW-1 to PW-5 are close relatives of the
deceased, three of them are injured and they are highly
interested in the outcome of the case.
33. In Paresh Kalyandas Bhavsar Vs. Sadiq
Yakubbhai Jamadar & Ors., reported in AIR 1993 SC
1544, it is held by the Hon'ble Supreme Court that mere
interestedness is not a ground to reject the evidence of the
eye witnesses, particularly those who were injured. Firstly,
their presence during the occurrence cannot be doubted.
Secondly, the injured witnesses would be the last persons to
leave out the real culprits and implicate others falsely.
Patna High Court CR. APP (DB) No.393 of 1995 dt.11-09-2025
However, it becomes necessary to scrutinize their evidence
with great care and caution. Normally, in a case of this nature,
the evidence of such witnesses is scrutinized in the light of
medical evidence, their previous statements, the earliest
version put forward and other circumstances like the
investigation being defective and also the effect of omission
or discrepancy, if any.
34. In the instant case, amongst first five witnesses,
three were injured. Dharmendra, Umesh and Baleshwar
sustained gun shot injury on the date and time of occurrence.
Is it believable at this stage to hold that the sons of the
deceased and the injured eye witnesses would implicate
innocent persons leaving aside the real culprits. The
irresistible reply would be in the negative.
35. In Rajju @ Prakash Vs. State of Madhya
Pradesh, reported in 1993 Supp (4) SCC 667, almost
similar is the incident like the case in hand. The occurrence
took place at about 08:00 in the evening and the First
Information Report was lodged by PW-1, who happened to be
the brother of the deceased at 08:50 p.m., the same evening,
Patna High Court CR. APP (DB) No.393 of 1995 dt.11-09-2025
i.e., within an hour of occurrence. In the First Information
Report only, the appellant was named and it was said that he
along with three other accused persons had assaulted the
deceased. The Hon'ble Supreme Court held that if PW-1, the
informant, had any motive to falsely implicate their enemies
or persons against whom they had any grudge, then they
would have named three other persons as well but they
admitted that only the appellant was identified and others
were not known to them.
36. In the instant case also the FIR maker stated
that eight persons being armed with fire arms assembled in
front of their house. Four of them entered into the house and
caused the massacre. The informant stated only three names,
he even could not say the name of the fourth assailant, who
entered into the house and the names of those who were
standing outside. Had the informant any motive to implicate
falsely innocent persons, he could have stated the names of
other persons. Thus, we hold that only because PW-1 to PW-5
were close relatives and interested witnesses, their evidence
cannot be treated as false and concocted, and thereby
Patna High Court CR. APP (DB) No.393 of 1995 dt.11-09-2025
discarded.
37. It is found from Lower Court Record itself that
appellants were charged under Section 302 of the IPC with
the aid of Section 149 IPC. Practically, appellant-Binod Singh
was convicted under Section 302 of the IPC taking into
consideration his vicarious liability of being a member of
unlawful assembly, the common object of such assembly was
to commit murder and cause injury of the above-named
persons.
38. It is submitted by the learned Advocate for the
appellants that the prosecution hopelessly failed to prove the
charge under Sections 148 and 149 of the I.P.C. A question
was raised by him, whether section 149 IPC has any manner
of application for fastening the constructive liability, which is a
sine qua non for its operation. It is submitted by him that
according to the prosecution, eight persons came to the house
of the informant. Out of the said eight persons, only four
persons entered into the house. The witnesses did not state
the specific role of remaining accused persons, who were
allegedly outside the house of the deceased.
Patna High Court CR. APP (DB) No.393 of 1995 dt.11-09-2025
39. It is needless to say that mere presence in an
unlawful assembly cannot render a person liable unless there
was a common object and the members of unlawful assembly
were actuated by that common object and that object is one
of those set out in section 141 and where common object of
an unlawful assembly is not proved the accused cannot be
convicted with the help of Section 149 of IPC. The crucial
question is as to whether the assembly consisted of five or
more persons and whether the said persons entertained one
or more of the common objects, as specified in Section 141 of
the IPC.
40. In the instant case, the prosecution witnesses
were absolutely silent about the role of the persons, who were
standing outside the house. The Investigating Officer also
failed to identify and arrest those persons to ascertain as to
whether the said persons also shared common object with the
appellants. A common object may be formed by express
agreement after mutual consideration, but that is by no
means necessary. It may be formed at any stage by all or few
members of the assembly and the other members may just
Patna High Court CR. APP (DB) No.393 of 1995 dt.11-09-2025
join and adopt. Once formed, it need not continue to be the
same. It may be modified or altered or abandoned at any
stage. The expression "in prosecution of common object" as
appearing in Section 149 have to be strictly construed as
equivalent to "in order to attain the common object". It must
be immediately connected with the common object by virtue
of the nature of the object. There must be community of
object and the object may exist only upto a particular stage
and not thereafter.
41. Section 149 of IPC consists of two parts, the
first part of section means that the offence to be committed in
prosecution of the common object must be one which is
committed with a view to accomplish the common object. In
other that the offence may fall within the first part, the
offence must be connected immediately with the common
object of the unlawful assembly of which the accused was a
member. Even if, the offence committed is not in direct
prosecution of the common object of the assembly it may yet
fall under Section 141 IPC if it can be held that the offence
was such as the members knew was likely to be committed
Patna High Court CR. APP (DB) No.393 of 1995 dt.11-09-2025
and this is what is required in the second part of the section.
42. In support of our discussion, we may refer to
the decision of the Hon'ble Supreme Court in Gangadhar
Behera & Ors. Vs. State of Orissa , reported in (2002) 8
SCC 381.
43. Similar view was taken by the Hon'ble Supreme
Court in a subsequent decision in the case of Chanakya
Dhibar (dead) Vs. State of West Bengal & Ors.,
reported in (2004) 12 SCC 398 and Dani Singh & Ors.
Vs. State of Bihar, reported in 2005 SCC (Crl) 127.
44. In Ramachandran & Ors. Vs. State of
Kerala, reported in (2011) 9 SCC 257, it was held by the
Hon'ble Supreme Court that Section 149 IPC has essential
two ingredients, viz. (i) offence committed by any member of
an unlawful assembly consisting of five or more members,
and (ii) such offence must be committed in prosecution of the
common object (under Section 141 of IPC) of that assembly
or such as the members of that assembly knew to be likely to
be committed in prosecution of the common object. In order
that the case may fall under the first part of Section 149 of
Patna High Court CR. APP (DB) No.393 of 1995 dt.11-09-2025
IPC, the offence must be connected immediately with the
common object of the unlawful assembly, of which the
accused were members. Even if, the offence committed is not
in direct prosecution of the common object of the assembly, it
may yet fall under the second part of Section 149 of IPC, if it
can be held that the offence was such as the members knew
was likely to be committed. The expression "know" does not
mean a mere possibility, such as might or might not happen.
For instance, it is a matter of common knowledge that if a
body of persons go armed to take forcible possession of the
land, it would be right to say that someone is likely to be killed
and all the members of the unlawful assembly must be aware
of that likelihood and would be guilty under the second part of
Section 149 IPC. There may be cases which would come
within the second part, but not within the first. The distinction
between two parts of section 149 IPC cannot be ignored or
obliterated.
45. In Taijuddin Vs. State of Assam & Ors. ,
reported in (2022) 1 SCC 395, the Hon'ble Supreme Court
considering the scope and object of Sections 141 to 149 of
Patna High Court CR. APP (DB) No.393 of 1995 dt.11-09-2025
the IPC held that a person, who only pointed out where the
victim was hiding, cannot be said to be the member of
unlawful assembly and cannot be convicted with the aid of
section 149 of IPC.
46. In the instant case too, the appellants cannot
roped with the aid of vicarious liability described in section
149 of IPC on the ground that four suspected persons were
standing outside the house of victim. There is absolutely no
evidence that the said suspected persons had common object
to commit the offence of murder and causing gun shot injury
of the deceased and the eye witnesses. Therefore, we are of
the view that appellant-Binod Singh cannot be convicted
under Section 302 of IPC with the aid of Section 149 of the
IPC.
47. Similarly, the Trial Court committed an error in
convicting appellant-Kamakhya Singh under Sections 148 and
149 of the IPC.
48. In Pulen Phukan & Ors. Vs. State of
Assam, reported in (2023) 13 SCC 41, the Hon'ble
Supreme Court disbelieved the story of common object and
Patna High Court CR. APP (DB) No.393 of 1995 dt.11-09-2025
commission of offence by some members of unlawful
assembly in prosecution of common object under the facts
and circumstances of the case.
49. In the instant case also, the facts and
circumstances does not inspire us to hold that the appellants
formed unlawful assembly within the meaning of section 141
of IPC and in prosecution of the common object of the
assembly, the appellants committed murder of father and
grandfather of the informant and injury to the brothers and
nephew of the informant and the witnesses.
50. The decision of the Hon'ble Supreme Court in
Naresh @ Nehru v. State of Haryana, reported in
(2023) 10 SCC 134 may also relied on in support of our
observation.
51. Oral evidence of the witnesses on record is
absolutely silent as to the formation of unlawful assembly by
the appellants and other unknown persons except an omnibus
statement that four unknown persons were standing with
arms outside the house of the informant. The evidence of the
inmates of the house where the incident took place suggests
Patna High Court CR. APP (DB) No.393 of 1995 dt.11-09-2025
that four persons entered into the house. They were these
two appellants and one Kamlesh Bhat and another unknown
person. Therefore, the number of accused persons, who
entered into the house and caused massacre also was not five
or more persons. Thus, the prosecution evidence is not only
scanty but also does not support the charge under Section
148 or 149 of the I.P.C.
52. Conviction of the appellants cannot sustain with
the aid of section 149 of the I.P.C. or that the appellant Binod
Singh cannot be held guilty for committing offence of murder
with the aid of Section 149 of the I.P.C.
53. The learned Advocate on behalf of the
respondent, on the other hand, submits that all the witnesses
are the members of the family of the deceased and injured
persons. Three of them are injured witnesses. Therefore,
there presence at the scene of occurrence on the date and
time of incident cannot be held to be doubtful. The evidence
of the witnesses corroborated with each other on material
points. It is true that there may be some minor contradictions
and omissions between the statements of the witnesses but
Patna High Court CR. APP (DB) No.393 of 1995 dt.11-09-2025
these contradictions and omissions ought to be treated as
minor contradictions, not touching upon the merit of the
prosecution case.
54. It is also submitted by the learned Advocate
appearing on behalf of the respondent that from the evidence
of the witnesses no. 1 to 5, motive of the accused persons
was proved. It is found from the evidence on record that
about 10 days before the occurrence, appellant Kamakhya
Singh ate some sweets from the shop of one of the witnesses
situated at Charpokhari market but did not pay the price of
the same. Over the said issue, a quarrel broke out between
P.W. 2 and Kamakhya Singh. At that time, Kamakhya Singh
threatened P.W. 2 that he would finish all the members of his
family. P.W. 3 and P.W. 4 also corroborated the said incident.
It was stated on oath by P.W. 3 that many people of
Charpokhari market knew about the incidence of quarrel on
account of non-payment of money of sweets between P.W. 2
and accused Kamakhya Singh. But nobody would depose out
of fear from the accused persons. The said incident of quarrel
was not strongly challenged by the defence during cross-
Patna High Court CR. APP (DB) No.393 of 1995 dt.11-09-2025
examination of the witnesses except a solitary suggestion to
them that no such quarrel broke out between them, which the
witnesses sternly denied.
55. The learned Advocate appearing on behalf of
the respondent also submits that the appellants are residents
of the same locality. They are known to the witnesses.
Therefore, identification of the accused persons cannot be
questioned by the appellants. Thus, it is submitted by the
learned Advocate appearing on behalf of the respondent that
if the presence of the appellants along with others on the date
and time of occurrence is proved, coupled with the overt act
they committed, they could be convicted under Section 302
read with Section 149 of the Indian Penal Code.
56. In support of his contention, the learned
Advocate appearing on behalf of the respondent refers to a
recent decision of the Hon'ble Supreme Court in Parshuram
v. State of M.P., reported in 2023 INSC 973. Paragraph
13 of the said decision is very relevant and quoted below: -
"13. The law with regard to
conviction under Section 302 read with
Section 149 of IPC has been succinctly
Patna High Court CR. APP (DB) No.393 of 1995 dt.11-09-2025
discussed by a Constitution Bench of this
Court in the locus classicus of Masalti v.
State of U.P.2, wherein this Court observed
thus:
17. .......What has to be proved
against a person who is alleged to be a
member of an unlawful assembly is that he
was one of the persons constituting the
assembly and he entertained along with the
other members of the assembly the
common object as defined by Section 141
IPC. Section 142 provides that whoever,
being aware of facts which render any
assembly an unlawful assembly,
intentionally joins that assembly, or
continues in it, is said to be a member of an
unlawful assembly. In other words, an
assembly of five or more persons actuated
by, and entertaining one or more of the
common objects specified by the five
clauses of Section 141, is an unlawful
assembly. The crucial question to determine
in such a case is whether the assembly
consisted of five or more persons and
whether the said persons entertained one
or more of the common objects as specified
by Section 141. While determining this
Patna High Court CR. APP (DB) No.393 of 1995 dt.11-09-2025
question, it becomes relevant to consider
whether the assembly consisted of some
persons who were merely passive witnesses
and had joined the assembly as a matter of
idle curiosity without intending to entertain
the common object of the assembly. It is in
that context that the observations made by
this Court in the case of Baladin [AIR 1956
SC 181] assume significance; otherwise, in
law, it would not be correct to say that
before a person is held to be a member of
an unlawful assembly, it must be shown
that he had committed some illegal overt
act or had been guilty of some illegal
omission in pursuance of the common
object of the assembly. In fact, Section 149
makes it clear that if an offence is
committed by any member of an unlawful
assembly in prosecution of the common
object of that assembly, or such as the
members of that assembly knew to be likely
to be committed in prosecution of that
object, every person who, at the time of the
committing of that offence, is a member of
the same assembly, is guilty of that
offence; and that emphatically brings out
the principle that the punishment
Patna High Court CR. APP (DB) No.393 of 1995 dt.11-09-2025
prescribed by Section 149 is in a sense
vicarious and does not always proceed on
the basis that the offence has been actually
committed by every member of the
unlawful assembly........"
57. Relying on the said decision, it is submitted by
the learned Advocate appearing on behalf of the respondent
that from the evidence of P.W. 1 to P.W. 5, it is clear that the
appellants along with five other unknown persons were
members of unlawful assembly. Four of them, being armed
with fire arms, entered into the house of the informant and
the witnesses. Remaining four accused persons were standing
at the entrance door of the informant.
58. No doubt, there is no specific role attributed to
all the members of unlawful assembly in causing the death of
Banwari Kahar and Jagannath Kahar and bullet injury of three
witnesses, however, since appellants were members of the
unlawful assembly, in view of the law laid down in Parshuram
(supra), relying on earlier decision in the case of Masalti v.
State of U.P., it is not necessary that such a person, for being
convicted, must have actually assaulted the deceased.
59. We have already discussed the provisions
Patna High Court CR. APP (DB) No.393 of 1995 dt.11-09-2025
relating to formation of an unlawful assembly, common object
of such assembly, mainly in relation to the provisions
contained in Section 148 and 149 of the I.P.C. The witnesses
on behalf of the prosecution did not state anything with
regard to formation of unlawful assembly by the appellants
and other persons, who did not take any part in any overt act.
At the risk of repetition, we may record that the witnesses
saw four other persons standing outside the house at the time
of occurrence with fire arms in their hand. There is no
evidence as to whether the said four persons were in the
group of appellants or if they committed some act in
prosecution of common object of the assembly or the said
persons knew about the common object of the assembly to
cause death of the family members of P.W. 1, P.W. 2 and
P.W. 3. Therefore, the ratio laid down in Parshuram (supra)
relying upon the decision in Masalti v. State of U.P., reported
in (1964) 8 SCR 133, is not applicable under the facts and
circumstances of this case.
60. The learned Advocate appearing on behalf of
the appellants vehemently argues that P.W. 1 to P.W. 5 are
Patna High Court CR. APP (DB) No.393 of 1995 dt.11-09-2025
close relatives. They had previous enmity with the appellants.
The Investigating Officer failed to examine any witness of the
neighbourhood of the place of occurrence. Therefore,
prosecution version of the incident ought to be regarded with
a pinch of salt. As a matter of fact, the Investigating Officer
failed to examine any person of the neighbourhood of the
place of occurrence. The villagers, who accompanied the
deceased to the hospital were also not examined. On
examination of the lower court records and the case-diary for
a limited purpose, we are astonished to note that even the
sketch map of the place of occurrence was not drawn by the
Investigating Officer.
61. In our view, the investigation of the case was
conducted in a very perfunctory manner. At this stage,
question that arises for consideration is as to whether a wrong
and perfunctory investigation would go in favour of the
appellants when the evidence on record sufficiently proves the
role of each of the appellants, precisely and without any
shadow of doubt. It is needless to say that we are not in a
position to discard the evidence of the injured witnesses.
Patna High Court CR. APP (DB) No.393 of 1995 dt.11-09-2025
62. In Naresh @ Nehru (supra), the Hon'ble
Supreme Court in paragraph 16 of the judgement quoted
paragraph 22 of the judgement in Rai Sandeep v. State
(NCT of Delhi), reported in (2012) 8 SCC 21. In Rai
Sandeep v. State (NCT of Delhi), the Hon'ble Supreme Court
was pleaded to state, who would be treated as a sterling
witnesses in a criminal trial. The relevant paragraph is quoted
below.
"22 In our considered opinion, the
"sterling witness" should be of a very high
quality and calibre whose version should,
therefore, be unassailable. The court
considering the version of such witness
should be in a position to accept it for its
face value without any hesitation. To test
the quality of such a witness, the status of
the witness would be immaterial and what
would be relevant is the truthfulness of the
statement made by such a witness. What
would be more relevant would be the
consistency of the statement right from the
starting point till the end, namely, at the
time when the witness makes the initial
statement and ultimately before the court.
Patna High Court CR. APP (DB) No.393 of 1995 dt.11-09-2025
It should be natural and consistent with the
case of the prosecution qua the accused.
There should not be any prevarication in the
version of such a witness. The witness
should be in a position to withstand the
cross-examination of any length and
howsoever strenuous it may be and under
no circumstance should give room for any
doubt as to the factum of the occurrence,
the persons involved, as well as the
sequence of it. Such a version should have
co-relation with each and every one of other
supporting material such as the recoveries
made, the weapons used, the manner of
offence committed, the scientific evidence
and the expert opinion. The said version
should consistently match with the version
of every other witness. It can even be
stated that it should be akin to the test
applied in the case of circumstantial
evidence where there should not be any
missing link in the chain of circumstances to
hold the accused guilty of the offence
alleged against him. Only if the version of
such a witness qualifies the above test as
well as all other such similar tests to be
applied, can it be held that such a witness
Patna High Court CR. APP (DB) No.393 of 1995 dt.11-09-2025
can be called as a "sterling witness" whose
version can be accepted by the court
without any corroboration and based on
which the guilty can be punished. To be
more precise, the version of the said witness
on the core spectrum of the crime should
remain intact while all other attendant
materials, namely, oral, documentary and
material objects should match the said
version in material particulars in order to
enable the court trying the offence to rely
on the core version to sieve the other
supporting materials for holding the
offender guilty of the charge alleged."
63. In the instant case, let us now briefly discuss
the evidence of witnesses on behalf of the prosecution to
come to a finding as to whether their evidence is sterling in
nature or not.
64. We have discussed the relationship of the
witnesses no. P.W. 1 to P.W. 5 with the deceased and the
injured persons.
65. From the evidence of P.W. 1, Dharmendra
Kumar, it is ascertained that he recognized the appellants,
Birendra Singh and Kamlesh Bhat, who entered into their
Patna High Court CR. APP (DB) No.393 of 1995 dt.11-09-2025
house with fire arms. P.W. 1 and other witnesses stated that
Birendra Singh was carrying a rifle, Kamlesh Bhat was holding
a double barrel gun, Binod Singh had a pistol and Kamakhya
Singh was armed with a rifle. Kamlesh fired at P.W. 1
Dharmendra Kumar and he sustained bullet injury on his right
leg. He fell down on the ground and became unconscious.
When he regained consciousness, he saw that his grandfather
Jagannath Kahar and great grandfather Banwari Kahar had
already died. Baleshwar Prasad and Umesh Prasad sustained
injury. It is also found from his evidence that at the time of
occurrence, his uncle, Baban Prasad was present in the
courtyard. Other two witnesses, namely, Umesh Prasad and
Baleshwar Prasad were in women's courtyard along with his
father Hareshwar Prasad. His grand father was in the
courtyard in front of the cattle shed and while his great
grandfather was washing his hands and fists at the hand
pump (Chapa Kal).
66. P.W. 2 is Baleshwar Prasad. He deposed that on
the date of occurrence at about 08.00 P.M., he heard the
sound of firing. Hearing the sound of two shots, he went to
Patna High Court CR. APP (DB) No.393 of 1995 dt.11-09-2025
the northern courtyard where his father was eating. He saw
five man standing there. Amongst them, he could recognize
Kamakhya Singh with a rifle in his hand, Binod Singh, holding
a pistol, Kamlesh Bhat with a double barrel gun and Birendra
Singh with a single barrel gun. As soon as he reached there,
Binod Singh fired at him with a pistol and he was struck by
bullet on his right arm. Since receiving bullet injury, he was
handicapped by his right hand. Thereafter, Kamakhya Singh
fired with the rifle at his father. On being hit, his father fell
down and died while writhing in pain. Then, Kamlesh Bhat
fired with the help of his double barrel gun, causing injury to
Umesh and Dharmendra on their left leg and right leg,
respectively.
67. P.W. 3 is Hareshwar Prasad. He also gave the
same account of story in his deposition. He claimed himself to
be the eye-witness of the murder of his father Jagannath
Kahar and also the grand father Banwari Kahar. P.W. 3 stated
that about ten days before the occurrence, he had a quarrel
with Kamakhya Singh over payment of price of sweets, which
he ate from the shop of the witness.
Patna High Court CR. APP (DB) No.393 of 1995 dt.11-09-2025
68. P.W. 4 Umesh Prasad is another son of the
deceased Jagannath Kahar. According to his account, on the
date and time of occurrence, he was sitting in the southern
courtyard of their house. While his father was in the northern
courtyard, eating food, sitting on a cot. At that time, he heard
the sound of firing from outside the house. Immediately, he
rushed to the gate of southern courtyard. Along with him,
Baleshwar, Baban, Hareshwar and Dharmendra also came
there. They all saw Kamakhya Singh firing at Jagannath
Kahar, causing instant death. They also saw the accused
persons causing death by gun shot injury of Banwari Kahar.
P.W. 4 also stated that Dharmendra, Baleshwar and Umesh
received gun shot injury by Kamlesh Bhat and Binod Singh.
69. P.W. 5 is the informant, who made statement to
the SHO of Charpokhari Police Station, which was treated as
F.I.R.
70. Thus, all the witnesses in same tune, narrated
the prosecution version of the incident and unequivocally
stated the role of Kamakhya Singh and Binod Singh in causing
death of Jagannath Kahar, gun shot injury to Dharmendra,
Patna High Court CR. APP (DB) No.393 of 1995 dt.11-09-2025
Umesh and Baleshwar. They withstood the test of cross-
examination. Their evidence was not shaken during cross-
examination. Therefore, we have no hesitation to accept and
rely upon the evidence of the above-named witnesses.
71. P.W. 6 is the Medical Officer of Charpokhari
State Dispensary who medically examined the injured persons
and corroborated the fact of receiving gun shot injury by
Umesh, Dharmendra and Baleshwar.
72. P.W. 8 Madan Mohan Verma, proved the post-
mortem report of the deceased Banwari Kahar. There were
following injuries as per the post-mortem report in the body of
the deceased:
"Rigor Mortis was present
External Injuries:- i) Lacerated
wound 3/4" X 1/2" in the chest cavity deep
with inverted margin on the back of the chest
just below the inferior angle of left scapula.
ii) Lacerated wound 3/4" × chest
cavity deep with everted margin on the right
lateral side of chest in the fifth intercostal
space. Injury no. 1 communicating to injury
no. 2.
iii) Lacerated wound of measuring
Patna High Court CR. APP (DB) No.393 of 1995 dt.11-09-2025
3/4" × 3/4" with inverted margin on the
medial side of right arm. Injury no. 3 is just
opposite to injury no. 2.
iv) Lacerated wound measuring 1"
× 1" on the lateral side of right arm with
everted margin. Injury no. 3 communicating
to injury no. 4."
73. P.W. 9 Murat Ram proved the post-mortem of
Jagannath Kahar, which is marked as Exhibit-11 during trial
of the case.
74. It is important to note that the Medical Officer,
who hold post-mortem examination over the body of
Jagannath Kahar could not be examined by the prosecution.
However, no case on behalf of the defence was made out that
Jagannath Kahar was not murdered by gun shot injury.
75. At this stage, we may take help of Exhibit-8,
being the inquest report prepared by P.W. 7, upon the dead-
body of the deceased. The dead-body was found on the open
space (Sehan Jamin) in front of the house of Baban Kahar.
Inquest was done on the date of occurrence at about 09.30
P.M. The Police Officer found bullet injury on the lower jaw of
the deceased causing destruction of teeth of lower mandible
Patna High Court CR. APP (DB) No.393 of 1995 dt.11-09-2025
with presence of blood. There were laceration on the left
shoulder of the deceased. The Officer found that Jagannath
Kahar died of gun shot injury. The inquest report corroborates
the evidence of the witnesses. Therefore, non-examination of
the Medical Officer who conducted autopsy over the dead-
body of the deceased is found to be no material which may
affect the ultimate decision of this Court.
76. A question was raised on behalf of the
appellants that the prosecution failed to prove how the
appellants were identified by the witnesses. All the witnesses
stated that lanterns were burning in the house and they could
identify the appellants with the help of light of lanterns. An
objection was raised by the learned counsel for the appellants
that the Investigating Officer did not seize any lantern from
the place of occurrence.
77. We have already stated that the appellants
would not get any advantage due to perfunctory and
lackadaisical investigation of the Investigating Officer. It is
obvious that in a village house, source of light is by lantern
and naturally lanterns were burning at about 08.00 P.M. on
Patna High Court CR. APP (DB) No.393 of 1995 dt.11-09-2025
the date of occurrence in the house of the victims. Moreover,
the appellants are residents of the same village and they are
known to the witness from before. Therefore, no suspicion
can be raised over identification of the appellants.
78. For the reasons stated above, we are of the
view that the Trial Court rightly convicted and sentenced
appellant Kamakhya Singh for the offence punishable under
Section 302 of the Indian Penal Code to the imprisonment for
life and also to pay fine of Rs. 50,000/-, in default, simple
imprisonment to six (6) months.
79. However, for the reasons, recorded
hereinabove, we are of the view that the prosecution failed to
prove the charge of offence under Section 302/149 of the
I.P.C. against the accused Binod Singh on the ground of
vicarious liability in prosecution of common object. Specific
act alleged against Binod Singh is causing gun shot injury to
Baleshwar Prasad on his right hand.
80. Therefore, while setting aside the order of
conviction and sentence against appellant Binod Singh under
Section 302 read with Section 149 of the I.P.C., this Court
Patna High Court CR. APP (DB) No.393 of 1995 dt.11-09-2025
holds that appellant Binod Singh is liable to be punished for
the offence under Section 307 of the I.P.C.
81. Thus, this Court holds that appellant no. 2 Binod
Singh be sentenced to suffer rigorous imprisonment for seven
years with fine of Rs. 10,000/-, in default, to suffer further
simple imprisonment for six months for the offence
punishable under Section 307 of the I.P.C.
82. In case of appellant Binod Singh, the period of
incarceration which he had undergone during investigation,
trial of the case, after passing of the sentence by the Trial
Court till the grant of bail to him, shall be set up against the
actual period of punishment.
83. The appellants are directed to surrender before
the Trial Court within a period of two weeks from the date of
this order, failing which the Trial Court is at liberty to issue
warrant of arrest against them.
84. A plain copy of the judgement be handed over
to the appellant free of cost.
85. With the aforesaid observation/direction, this
appeal stands disposed of.
Patna High Court CR. APP (DB) No.393 of 1995 dt.11-09-2025
(Bibek Chaudhuri, J)
Dr. Anshuman, J : - I agree.
(Dr. Anshuman, J)
skm/-
AFR/NAFR AFR
CAV DATE 02.09.2025
Uploading Date 11.09.2025
Transmission Date 11.09.2025
