[Cites 5, Cited by 0]
Patna High Court
Sk. Quaiyum @ Miyan vs The State Of Bihar on 16 January, 2026
Author: Alok Kumar Pandey
Bench: Alok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.660 of 2009
======================================================
Sk. Quaiyum @ Miyan son of Late Sk. Aiyub Resident of village- Mahua
Bhusa, Ps- Gaunaha, Dist- West Champaran
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
Appearance :
For the Appellant/s : Ms. Kriti Kumari, Adv. (Amicus Curiae)
For the State : Mr. Anita Kumari Singh, APP
For the Informant : Mr. Rajdeep Kumar, Adv.
Mr. Ram Kishun Prasad, Adv.
======================================================
CORAM: HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY
ORAL JUDGMENT
Date : 16-01-2026
None appears on behalf of the appellant. On previous
occasion i.e. 08.07.2025 also, no one had appeared on behalf of
the appellant. Learned Additional Public Prosecutor for the State
and learned counsel for the informant are present.
2. It is noted that the matter is pending consideration
for about 16 years.
3. It has been requested and Ms. Kriti Kumari, learned
counsel, has shown her willingness to assist as Amicus Curiae in
the present matter.
4. Accordingly, learned counsel Ms. Kriti Kumari, has
been appointed as Amicus Curiae in the present matter.
5. Heard Ms. Kriti Kumari, learned Amicus Curiae
appearing for the appellant, learned Additional Public
Patna High Court CR. APP (SJ) No.660 of 2009 dt.16-01-2026
2/20
Prosecutor for the State and learned counsel for the informant.
6. The present appeal is directed against the judgment
of conviction dated 05.08.2009 and order of sentence dated
12.08.2009
passed by learned 2nd Additional Sessions Judge,
West Champaran, Bettiah in Sessions Trial No. 173 of 2008,
arising out of Gaunaha P.S. Case No. 48 of 2007 whereby and
whereunder the appellant has been convicted for the offences
punishable under Sections 307, 324, 452 of the Indian Penal
Code and has been sentenced to undergo R.I. for five years
along with fine of Rs. 3,000/- under Section 307 of the IPC and
in default of payment of fine, appellant has to undergo further
simple imprisonment of three months. The appellant has further
been sentenced to undergo R.I. for three years along with fine
of Rs. 2,000/- under Section 452 of the IPC and in default of
payment of fine, appellant has to undergo further simple
imprisonment of two months. However, no sentence order has
been passed under Section 324 of the IPC.
7. The informant gave his fardbeyan on 17.10.2007 to
A.S.I. of Shikarpur Police Station alleging therein that a week
ago his pattidar Quaiyum (appellant) was quarreling with his
younger brother/Sheikh Bhutto and informant pacified the said
quarrel and on account of said reason, appellant was threatening
Patna High Court CR. APP (SJ) No.660 of 2009 dt.16-01-2026
the informant of dire consequences. It is further alleged that on
17.10.2007 the informant after taking meal was sleeping in a hut
near the mosque with his elder brother/ Sheikh Toukid after
covering mosquito net and his father Sk. Ejaz Ahmad was
sleeping in the adjacent hut and Atikur Rahman was sleeping on
verandah. Suddenly at 12.30 AM, informant was attacked by
means of sharp edged weapon on his face including nose upon
which the informant awoke and flashed torch light and found
the appellant, who was standing having khand in his hand. The
informant raised alarm upon which his elder brother/ Sk.
Toukid/PW-1, father/Sheikh Ezaz Ahmad/PW-2 and Atikur
Rahman/PW-3 came. Thereafter, the appellant fled away having
khand in his hand but while fleeing away the appellant was
identified by all present there in the light of torch. The
informant claims that due to previous threat, the appellant
assaulted the informant by means of sharp edged khand with
intention to kill.
8. On the basis of fardbeyan given by the
informant/PW-4, Gaunaha P.S. Case No. 48 of 2007 dated
23.10.2007 was registered under Sections 452, 324 of the IPC
and later on Section 307 of the IPC was added. Routine
investigation followed. Statement of witnesses came to be
Patna High Court CR. APP (SJ) No.660 of 2009 dt.16-01-2026
recorded and on the completion of investigation, charge sheet
has been submitted against the appellant under Section 452,
324, 307 of the IPC. Thereafter, the learned trial court took
cognizance. The case was committed to the court of sessions
after following due procedure. The learned trial court framed
charges against the appellant under Sections 307, 324, 452 of
the IPC. Charges were read over and explained to the appellant
to which he pleaded not guilty and claimed to be tried.
9. In order to bring home guilt of accused
person/appellant, prosecution has examined altogether six
witnesses. PW-1 Toukit Alam, PW-2 Ejaz Ahmad, PW-3 Sk.
Atikur Rahman, PW-4 Ziyauddin Alam (Informant) PW-5 Dr.
Arun Kumar and PW-6 Jisu Murmu (I.O. of the case).
10. Prosecution has relied upon following
documentary evidence on record:-
Ext. 1- signature of Ejaz
Ahmad on fardbeyan.
Ext. 2- signature of
informant on fardbeyan
Ext. 3 to 3/2- injury report
prepared by doctor.
11. Defence has not produced any oral or
documentary evidence. However, defence of the appellant as
gathered from the line of cross examination of prosecution
witnesses as well as from the statement under Section 313 of the
Patna High Court CR. APP (SJ) No.660 of 2009 dt.16-01-2026
Cr.P.C. is that of total denial.
12. After hearing the parties, the learned trial court
convicted the appellant and sentenced him as indicated in the
second paragraph of the judgment.
13. Following submissions have been made on
behalf of learned counsel for the appellant:-
Learned Amicus Curiae submits that judgment of
conviction and order of sentence is bad in law and facts.
Learned Amicus Curiae further submits that the learned trial
court failed to appreciate that all the prosecution witnesses are
close relative of the informant. Learned Amicus Curiae further
submits that story of the appellant having seen by the witnesses
running away in torch light does not appear to be trustworthy.
Learned Amicus Curiae further submits that the trial court ought
to have appreciated that appellant has been falsely implicated in
this case due to previous dispute. Learned Amicus Curiae
further submits that Investigating Officer has not conducted the
investigation in proper manner. Learned Amicus Curiae has
submitted that in initial version of prosecution story, it is stated
that the informant was assaulted by the appellant upon his face
including nose and after that informant awoke and used the light
of torch and saw appellant who was standing with Khand but
Patna High Court CR. APP (SJ) No.660 of 2009 dt.16-01-2026
during adducing evidence before the court the informant/PW4
has stated that he used the light of torch prior to assault. Learned
Amicus Curiae further submits that in the present case, source
of identification is light of torch which helps in identifying the
appellant but no seizure of torch has been made. It has been
highlighted by the learned Amicus Curiae that there was dispute
between appellant and informant prior to the said occurrence.
Learned Amicus Curiae further submitted that the very
statement of PWs-1 and 2 are quite contradictory with the
statement of PW-6/I.O. In the light of aforesaid facts and
circumstances of the case, impugned judgment of conviction
and order of sentence are not justified and legal and same are fit
to be set aside.
14. Learned APP for the State and learned counsel
for the informant have submitted that informant, who has
sustained injury, has supported the story of prosecution. He
further submits that in the present case doctor has been
examined and he has also supported the story of prosecution
and other witnesses have also supported the version of
prosecution story. Learned APP further submitted that after
going through the material available on record, the trial court
has passed the judgment of conviction and order of sentence and
Patna High Court CR. APP (SJ) No.660 of 2009 dt.16-01-2026
the same is justified and legal and hence, no interference is
needed.
15. The question which arises for consideration is:-
"Whether the appellant has
committed the offence punishable under
Section 307, 324, 452 of the IPC in the light
of given facts and circumstances of the case
or not ?"
16. I have perused the impugned judgment, order of
trial court and trial court records. I have given my thoughtful
consideration to the rival contention made on behalf of the
parties as noted above.
17. It is necessary to evaluate, analyze and screen
out the evidences of witnesses adduced before the trial court.
18. PW-4/ Ziyauddin Alam is informant as well as
victim of the present case. At para 1 he has stated that
occurrence took place on 17.10.2007 at 12:30 AM and he as
well as his brother/Toukeer Alam was sleeping in the hut. He
has further stated that at 12:30 AM, appellant having armed with
khand came and opened the chachra due to which he awoke and
flashed the torch upon which appellant stopped for a moment
with khand and attacked as a result of which he sustained injury
on face near the nose. Thereafter, the informant raised alarm
upon which Atikur Rahman/PW-3 and Ejaz Ahmad/PW-2 came
Patna High Court CR. APP (SJ) No.660 of 2009 dt.16-01-2026
and they helped the victim and took him to Narkatiyaganj
Government Hospital where he was treated. During cross
examination PW-4 has stated that he identified the appellant in
the light of torch. He has also stated that when the appellant
assaulted him, he raised alarm and also flashed the torch. He has
stated that torch, pillow and bedsheet were stained with blood.
He has also stated that he did not make effort to catch hold of
the appellant on account of fear of weapon. There was blood
stain in shirt and when his brother tried to help him, he was also
besmeared with blood.
18.1 The statement of PW-4 is quite divergent
regarding the manner of occurrence as in initial version of
prosecution story, the informant/PW-4 has stated that when
informant was assaulted on his face including nose by means of
sharp edged weapon, he awoke and flashed the torch light and
found the appellant who was standing with Khand in his hand
but during course of adducing evidence the informant, who is
the star witness of this case and also sustained injury in the
alleged occurrence, has improved his statement and stated that
appellant having armed with khand came and opened the
chachra upon which he awoke and flashed the torch upon which
appellant stopped for a moment with khand and attacked as a
Patna High Court CR. APP (SJ) No.660 of 2009 dt.16-01-2026
result of which he sustained injury on face near the nose and on
raising alarm, all the witnesses came. From the statement of
PW-4, it is evident that when the occurrence took place, he
raised alarm upon which PW-3 Sk. Atikur Rahman and PW-2
Ejaz Ahmad came. In this way, as per statement of
informant/PW-4, other prosecution witnesses are not eye
witness of the alleged occurrence. Apart from that, the source of
light is the most important factor to identify the appellant and on
the point of source of light, the statement of PW-4 in initial
version of prosecution story is quite divergent with the
statement adduced before the court as in initial version of
prosecution story informant used the light of torch after being
assaulted but during course of adducing evidence, he has stated
that he used the light of torch prior to assault. In both ways, the
statement of PW-4 is quite divergent and same is not
trustworthy.
19. PW-6/ Jissu Murmu has stated that on
17.10.2007 he was posted at Gaunaha Police Station and on
23.10.2007 he took charge of investigation of Gaunaha P.S.
Case No. 48 of 2007. He has stated that during course of
investigation he recorded the re-statement of informant and
inspected the place of occurrence. The place of occurrence is the
Patna High Court CR. APP (SJ) No.660 of 2009 dt.16-01-2026
thatched house of informant situated at Village Mahua Bhuj. He
has further stated that he recorded the statement of Ejaz Ahmad,
Sheikh Toukit and Sheikh Atiur Rahman. He obtained the injury
report of injured and submitted charge sheet in the court.
19.1 During cross examination, PW-6/I.O. has
stated that Fardbeyan was received from Narkatiyaganj Thana
and fardbeyan was recorded by S.I. Samendra Prakash Singh.
He has further stated that he has not recorded the statement of
chowkidar who used to take daily diary to Superintendent of
Police. He has not recorded the statement of officer who has
recorded the fardbeyan. He has not mentioned the description of
injury of the injured in the case diary. He recorded the statement
of injured in Mahua Bhuj. He has not recorded the statement of
witnesses of boundary of place of occurrence. He has stated that
blood was not fallen on the earth and he did not seize blood
stained mosquito net and bed sheet. He has not seized any
weapon from the house of accused. He has also stated that there
was land dispute between appellant and informant but he has not
conducted the investigation on the said point. He recorded the
statement of injured after one week of the occurrence.
20. PW-5/ Dr. Arun Kumar has stated that on
17.10.2007 he was posted P.H.C. Narkatiaganj as Medical
Patna High Court CR. APP (SJ) No.660 of 2009 dt.16-01-2026
officer and on the same day, he examined Sk. Jiyauddin and
found following injuries on his body:-
i. Incised wound on the bridge of nose
and left side of cheek, size 4" x 1/2" x 1/2".
ii. Broken tooth on left side.
Opinion was reserved till receipt of report of MJK
Hospital, Bettiah. Injury no. 1 is caused by sharp object and
injury no. 2 is caused by hard blunt substance. Fracture of nasal
bone was found in X-ray, which is grievous in nature. Other
injuries are simple in nature.
21. PW-1/ Toukit Alam has stated that occurrence
took place on 17.10.2007 at 12:30 AM. and at that time he was
sleeping in his house and on the rattling sound of Chachra, he
awoke and flashed torch and saw that appellant assaulted on the
neck of his brother Jiyauddin (Informant) by means of khand
which hit on the nose and tooth. He further stated that appellant
was quarreling with his brother and informant pacified the
matter upon which the appellant threatened the informant of dire
consequences.
21.1 During cross examination, at para 2 PW-1 has
stated that his brother raised alarm that he sustained injury and
at that time the appellant was standing there. He further stated
that though he raised alarm but did not make effort to catch the
appellant. Blood stain was found on the bed, bed-sheet and
Patna High Court CR. APP (SJ) No.660 of 2009 dt.16-01-2026
floor. At para 3 he has stated that after one week of the
occurrence Daroga Ji came to the village and at that time he was
in his house. He has stated that he handed over mosquito net and
bed sheet to Daroga Ji and seizure list was made.
21.2 From perusal of evidence of PW-1, it is clear that
though he is claiming to be an eye witness of the alleged
occurrence but the statement of PW-4/ informant clearly denotes
that PW-1 is not eye witness of the occurrence as when
informant raised alarm after having sustained injury, only PW-2
and PW-3 came. Further, PW-1 has stated that he handed over
mosquito net and bed sheet to Daroga Ji but the said statement is
quite divergent from PW-6/I.O. who has stated that he did not
seize blood stained mosquito net and bed sheet. On the point of
seizure list, the statement of PW-1 is quite divergent with the
PW-6/I.O. In the light of aforesaid facts, his evidence is neither
convincing nor trustworthy.
22. PW-2/Ejaz Ahmad has stated that occurrence took
place on 17.10.2007 at 12:30 AM and at that time he was
sleeping in his house. He has stated that on the noise of his son
Sk. Ziyauddin, he awoke and proceeded to the hut with torch
where his son was sleeping and saw the appellant having blood
stained khand in hand and blood stain was also found on his
Patna High Court CR. APP (SJ) No.660 of 2009 dt.16-01-2026
body. He has further stated that he went near his son and found
him in injured condition and his face was cut by means of
khand. Reason behind the occurrence as stated by PW-2 is that
one week's ago appellant and his younger brother had quarreled
and his son/informant had pacified the matter upon which the
appellant had threatened the informant of dire consequences.
22.1 During cross examination, at para-2 PW-2 has
stated that blood stain was found on floor, mosquito net and bed
sheet and same were shown to the police and police made
seizure list of the said articles and seizure list was also made
blood stained clothe. PW-2 has specifically stated that his son
had sustained one injury but he had not seen the appellant
assaulting the victim/informant. He has also stated that his son
stated that appellant was escaping by assaulting him and on
account of fear of weapon, he did not catch hold of the
appellant.
22.2 From perusal of statement of PW-2, it is crystal
clear that he has not seen the appellant assaulting the
victim/informant. Further, PW-2 has stated that blood stain was
found on floor, mosquito net, bed sheet and clothe and police
made seizure list of the said articles but the said statement is
quite divergent from the statement of PW-6/I.O. In this way, his
Patna High Court CR. APP (SJ) No.660 of 2009 dt.16-01-2026
statement is also not trustworthy.
23. PW-3/ Sk. Atikur Rahman has stated that
occurrence took place on 17.10.2007 at 12:30 AM and at that
time he was sleeping at his verandah. He has stated that on
raising alarm by Ziyauddin, he came with torch and went near
the hut of Ziyauddin and saw the appellant who was having
blood stained khand and blood stain was also found on the body
of appellant and appellant fled away. Thereafter, he saw
Ziyauddin/informant who sustained injury on the nose and
nearby part. Reason behind the alleged occurrence as stated by
PW-3 is that appellant and his brother had quarreled and
informant pacified the matter upon which appellant threatened
the informant of dire consequences.
23.1 During cross examination, PW-3 at para 2 has
stated that victim told him that appellant after assaulting went
away but PW-3 had not seen the appellant assaulting the victim.
In this way, PW-3 is not eye witness of the occurrence.
24. From the analysis of evidence of prosecution
witnesses, it is clear that in initial version of prosecution story
the informant/PW4 has stated that in light of torch the appellant
was identified by him (PW-4) as well as Sk. Taukeer Alam/PW-
1, Sk. Ejaz Ahmad/ PW-2 and Sk. Atikur Rahman/PW-3 but
Patna High Court CR. APP (SJ) No.660 of 2009 dt.16-01-2026
alleged source of light was neither seized by the I.O./PW6 nor
produced during trial, thereby rendering the very basis of
identification doubtful and unclear. Furthermore, PW-1 has
stated that mosquito net and bedsheet were handed over to
police and seizure list was made. PW-2 has stated that blood
stained bed sheet and mosquito net were shown to police and
police made seizure list of said articles. PW-2 has also stated
that police made seizure list of blood stained clothe but the
aforesaid statements of PWs-1 and 2 are quite contradictory
with the statement of PW-6/Investigating Officer, who has
stated that blood stained mosquito net and bed-sheet was not
seized by him. Furthermore, the statement of I.O. on several
aspects of investigation is full of infirmities and discrepancies.
He has not made any investigation regarding the dispute
between the appellant and informant. He has not assigned any
reason as to why the statement of victim was recorded one week
after the occurrence. PW-5/ doctor has found one fracture of
nasal bone which is grievous in nature and others are simple in
nature. Further, it is also admitted by the prosecution witnesses
that there is quarrel between appellant and his brother and
informant had pacified the said quarrel and I.O. has also
admitted that there is dispute between the parties though he has
Patna High Court CR. APP (SJ) No.660 of 2009 dt.16-01-2026
not made investigation on the said score. So, there is reason to
falsely implicate the appellant in the said occurrence. The
source of identification which is light of torch is in question and
on the point of use of torch light, the statement of PW-
4/informant is quite divergent as in initial version of prosecution
story, the informant has stated that he was assaulted by means of
sharp edged weapon upon face and nose upon which he awoke
and used the torch light and found the appellant having khand in
his hand but during adducing evidence before the court, the
informant/PW4 has stated that prior to assault, he flashed torch
light. Furthermore, from the statement of PW-2 it is clear that he
reached at the place of occurrence on the noise of his son/victim
and proceeded to hut with a torch and he found his son was
sleeping and appellant was having blood stained khand in his
hand. PW-2 himself has not admitted that he has seen the
occurrence rather he has stated that he has seen the appellant. In
initial version of prosecution story, it is stated that after raising
alarm by informant, PWs-1, 2 and 3 came and appellant fled
away but he was identified in the light of torch while escaping.
In this way, from initial version of prosecution story, PWs-1, 2
and 3 saw the appellant in running condition in the light of torch
and none of the aforesaid witnesses has seen the appellant at the
Patna High Court CR. APP (SJ) No.660 of 2009 dt.16-01-2026
place of occurrence while assaulting the informant. Further,
pragmatically and prudently, it is inconceivable that a person
who sustained injury in dead silence of night was in a position
to exercise the option of torch light to identify the person who
assaulted him.
25. PW-4 is informant as well as victim of the case.
His statement is quite inconsistent regarding manner of
occurrence and defence has given suggestion that on account of
enmity with the appellant, he has been falsely implicated in the
present case and I.O./PW-6 has clearly stated that on the point
of enmity, he has not made any investigation and the very duty
of the I.O./PW-6 suffers from infirmities. The I.O. has not done
investigation in a fair manner. The very crux of the matter is that
the occurrence took place in midnight and appellant is agnate.
Motive behind the occurrence has also been disclosed by the
prosecution witnesses. It is also not disputed that there is dispute
between the appellant and informant's side and the I.O./PW-6
has also admitted that there is land dispute between the
appellant and informant's side. Further, the defence has also
suggested that on account of enmity, appellant has been falsely
implicated in the present case. While going through the material
available on record source of light which is potent factor to
Patna High Court CR. APP (SJ) No.660 of 2009 dt.16-01-2026
identify the appellant is in question and the said source of light
has not been seized and no seizure list has been produced. The
statement of victim/informant on the point of using torch light is
quite contradictory and pragmatically and prudently it is
unfathomable that when a person was assaulted whether he was
in a position to use the torch light to identify the
accused/appellant. Furthermore, the most important factor to
identify the appellant is light of torch and source of light is
proof of identification, in case occurrence has taken place in
darkness of night. Significantly, the alleged source of light was
neither seized by the I.O./PW-6 nor produced during trial,
thereby rendering the very basis of identification doubtful and
unclear. The very statement of informant on the point of using
torch light is quite divergent as in initial version he flashed torch
light after having sustained injury but during adducing evidence
before the court he has stated that he flashed torch light prior to
assault. The Fardbeyan clearly indicates that occurrence took
place on 17.10.2007 and FIR lodged on 23.10.2007 and there is
no plausible explanation regarding the said delay in lodging the
FIR. In this way, the needle of doubt persists upon the initial
version of prosecution story, thereby rendering the prosecution
case doubtful. It is cardinal principal of criminal law that the
Patna High Court CR. APP (SJ) No.660 of 2009 dt.16-01-2026
prosecution has to prove the case beyond reasonable doubt. The
contention of learned Amicus Curiae is quite convincing in the
light of aforesaid facts and circumstances of the case.
26. On all counts from the analysis of evidence of
prosecution witnesses as well as material available on record, I
find that the prosecution has failed to prove its case beyond
reasonable doubt.
27. In the result, in my view, prosecution case suffers
from several infirmities, as noticed above, and it was not a fit
case where conviction could have been recorded. The learned
trial court fell in error of law as well as appreciation of facts of
the case in view of settled criminal jurisprudence. Hence,
impugned judgment of conviction and order of sentence are
hereby set aside and this appeal stands allowed. Appellant is on
bail. He is discharged from the liabilities of bail bonds.
28. The interlocutory application, if any, also stands
disposed of.
29. Let a copy of this judgment be transmitted to the
Superintendent of the concerned jail for compliance and for
record.
30. The records of this case be also returned to the
concerned trial court forthwith.
Patna High Court CR. APP (SJ) No.660 of 2009 dt.16-01-2026
31. Before parting with the judgment, I appreciate the
legal assistance rendered by Ms. Kriti Kumari, learned Amicus
Curiae. Patna High Court Legal Services Committee is directed
to pay a sum of Rs. 5,000/- (rupees five thousand) to Ms. Kriti
Kumari, learned Amicus Curiae, as consolidated fee for the
legal assistance rendered by her, within a period of four weeks
from the date of receipt of this judgment.
(Alok Kumar Pandey, J)
shahzad/-
AFR/NAFR AFR
CAV DATE N.A.
Uploading Date 23.01.2026
Transmission Date 23.01.2026
