Patna High Court
NITISH KUMAR @ NIMIYAversusThe State of Bihar
- Decided
- Disposal
- DISMISSED
Holding
The appeals are dismissed; the convictions and sentences are affirmed.
Summary
The appellants Nitish Kumar and Rajesh Kumar were convicted for the murder of Mahesh Mistri and related offences under Sections 302/34, 448/34, 504/34, 506/34 of the IPC and Section 27 of the Arms Act. The prosecution relied primarily on the informant's (father of the deceased) testimony, post‑mortem report, and seized firearm evidence, while the defence argued that key witnesses were not examined and that police investigations were delayed and inconsistent. The High Court examined the credibility of the informant, found the medical evidence corroborative, and held that the prosecution had proved the case beyond reasonable doubt despite the alleged procedural lapses. It rejected the appellants' claim for adverse inference due to non‑examination of some witnesses, noting that the material witnesses presented were sufficient. Consequently, the Court dismissed both appeals and upheld the life sentence and accompanying terms of imprisonment.
Issues considered
- The adequacy of the prosecution's evidence in proving murder and related offences.
- Whether the non‑examination of certain material witnesses warrants adverse inference against the prosecution.
- The impact of alleged delays in FIR filing and police investigation on the validity of the conviction.
- The propriety of altering charges under Section 216 CrPC to include Section 34 and the Arms Act.
- The credibility of police officers' statements versus the informant's testimony.
Legislation cited
- Arms Act — s. 27
- Code of Criminal Procedure, 1973 — s. 216
- Indian Evidence Act, 1872 — s. 134
- Indian Penal Code — s. 302, 34, 448, 504, 506
Subjects
- murder
- IPC
- Section 34
- conspiracy
- Arms Act
- Criminal Procedure Code
- evidence
- adverse inference
- conviction
- appeal
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.339 of 2023
Arising Out of PS. Case No.-77 Year-2020 Thana- DEEPNAGAR District- Nalanda
======================================================
Nitish Kumar @ Nimiya, Son of Late Dinesh Prasad, Resident of Village -
Biyawani, P.S.- Deepnagar, District - Nalanda at Biharsharif.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 376 of 2023
Arising Out of PS. Case No.-77 Year-2020 Thana- DEEPNAGAR District- Nalanda
======================================================
Rajesh Kumar, Son of Dinesh Prasad, Resident of Village- Biyawani, PS-
Deepnagar, Distt- Nalanda at Biharsharif.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 339 of 2023)
For the Appellant : Mr. A.K. Thakur, Advocate
Mr. Abhimanyu Singh, Advocate
Mrs. Akrity Aishwarya, Advocate
For the Informant : Mr. Binay Kumar, Advocate
For the State : Mr. Bipin Kumar, APP
(In CRIMINAL APPEAL (DB) No. 376 of 2023)
For the Appellant : Mr. A.K. Thakur, Advocate
Mr. Abhimanyu Singh, Advocate
Mrs. Akrity Aishwarya, Advocate
For the Informant : Mr. Binay Kumar, Advocate
For the State : Mr. Bipin Kumar, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE PRAVEEN KUMAR
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 17-02-2026
Heard learned counsel for the appellants, learned counsel
for the informant and learned Additional Public Prosecutor for the
State in both the appeals.
Patna High Court CR. APP (DB) No.339 of 2023 dt.17-02-2026
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2. The appellants in these two appeals are seeking to set
aside the judgment of conviction dated 19.01.2023 (hereinafter
referred to as the ‘impugned judgment’) passed by learned Additional
District and Sessions Judge-II, Nalanda at Biharsharif (hereinafter
referred to as the ‘learned trial court’) in Sessions Case No. 297 of
2020/ Trial No. 01 of 2021 arising out of Deepnagar P.S. Case No. 77
of 2020 for the offences under Sections 302/34, 448/34, 504/34 and
506/34 of the Indian Penal Code (in short ‘IPC’) and Section 27 of
the Arms Act. The appellants are also praying for setting aside the
order of sentence dated 28.01.2023 (hereinafter referred to as the
‘impugned order’) by which the learned trial court has been pleased
to award a sentence of life imprisonment for the offence punishable
under Section 302/34 IPC and has further imposed a fine of
Rs.1,00,000/- to each of the appellants, the trial court has awarded a
sentence of five years rigorous imprisonment and imposed a fine of
Rs. 25,000/- for the offence punishable under Section 27 of the Arms
Act, for the offence punishable under Section 448/34 of the IPC, one
year imprisonment and for the offence punishable under Section
504/34 of the IPC, two years imprisonment with a fine of Rs. 5,000/-
and for the offence punishable under Section 506/34 of the IPC, the
trial court has awarded imprisonment of five years with a fine of Rs.
10,000/-. All the sentences are to run concurrently.
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Prosecution Story
3. The prosecution story is based on the fardbeyan of
Mathur Mistri (PW-3) recorded by the Sub-Inspector of Police
Anita Kumari (PW-6) of Deepnagar Police Station in Sadar
Hospital, Biharsharif, Nalanda, on 09.03.2020 at about 22:50 hrs.
In his fardebyan, the informant alleged that on 09.03.2020 during
evening time he was in his house, at that time about 7:30 P.M., his
co-villagers (1) Rajesh Kumar, (2) Nitish Kumar @ Nimiya and
(3) Dinesh Prasad armed with pistol in their hands entered into his
house hurling abuses and shot at his son Mahesh Mistri. As a result
of this, his son died at the place of occurrence, then he and his
family members concealed themselves. The informant further
alleged that all the three accused persons left the place by giving
life threatening. The informant has given the reason behind the
occurrence as purchase of 3 ½ decimal of land by him in the
month of November, 2019. He alleged that since the said purchase,
the accused persons were harassing him.
4. On the basis of the fardbeyan of Mathur Mistri,
police registered Deepnagar P.S. Case No. 77 of 2020 dated
09.09.2020 for the offences punishable under Sections 302/34,
448/34, 504/34 and 506/34 IPC. Upon completion of the
investigation, police submitted a charge sheet bearing Chargesheet
No. 138 of 2020 dated 09.06.2020 against the accused persons,
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whereafter cognizance of the offences were taken by the learned
Additional Chief Judicial Magistrate-V, Biharsharif, Nalanda.
Finding that the case is exclusively triable by the Court of
Sessions, the learned Magistrate committed the records on
14.12.2020.
5. Upon registration of the case as Sessions Trial No.
297 of 2020, charges were explained to the accused persons who
denied the charges and claimed to be tried.
6. The Learned trial court, thereafter, framed the charges
on 28.02.2022 under Sections 302, 448, 504 and 506 of the IPC. It
was later noticed by the learned trial court that inadvertently at the
time of framing of charge with all the Sections of the IPC, Section
34 of the IPC and Section 27 of the Arms Act could not be
recorded. The trial court noted the fact that the accused persons
had fired upon the deceased by pistol was well within the
knowledge of the accused persons and this is mentioned right from
the beginning in the FIR till the filing of the chargesheet and in
such condition, it is in the interest of justice to exercise the power
under Section 216 of the Code of Criminal Procedure (in short
‘CrPC’). Thus, on the date fixed for the delivery of judgment, the
trial court passed the order dated 19.01.2023 and the charges were
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altered as under Sections 302/34, 448/34, 504/34, 506/34 and
Section 27 of the Arms Act.
7. In course of trial, the prosecution examined as many
as 10 witnesses and produced some documentary evidences which
have been marked as Exhibit ‘1’ to Exhibit ‘5’ on behalf of the
prosecution. On behalf of the defence, no witness has been
examined, however, two material exhibits i.e. the seized empty
cartridges (Material Exhibit ‘1’) and pellet ( Material Exhibit ‘2’)
were brought. The description of prosecution witnesses and the
exhibits are given hereunder in tabular form:-
List of Prosecution Witnesses
PW-1 Sunita Devi
PW-2 Mahesh Prasad
PW-3 Mathur Mistri
PW-4 Brijnandan Thakur
PW-5 Chhote Mahto @ Rajkumar Prasad
PW-6 Anita Kumari (Sub-Inspector of Police)
PW-7 Dr. Dharam Prakash
PW-8 Dharmendra Kumar
PW-9 Murlidhar Ray
PW-10 Sher Singh Yadav
List of Exhibits on behalf of the Prosecution
Exhibit ‘1’ Signature of Mahesh Prasad on inquest report
Exhibit ‘1/1’ Writing and Signature of Sub-Inspector Anita
Kumari on carbon copy of inquest report
Exhibit ‘2’ Signature of witness Rishu Kumar on fardbeyan
Exhibit ‘2/1’ Writing and signature of witness Anita Kumari
on fardbeyan
Exhibit ‘3’ Signature of witness Brijnandan Thakur on
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seizure list
Exhibit ‘3/1’ Signature of Chhote Mahto on seizure list
Exhibit ‘3/2’ Signature of Chhote Mahto on production-cum-
seizure list
Exhibit ‘3/3 Signature of Brijnandan Thakur on production-
cum-seizure list
Exhibit ‘3/4 Writing and signature of Anita Kumari on entire
seizure list
Exhibit ‘4’ Production-cum-seizure list
Exhibit ‘4/1’ Signature of Mahesh Prasad on inquest report
Exhibit ‘4/2’ Signature of Rishu Kumar on inquest report
Exhibit ‘4/3’ Signature of Anita Kumar on inquest report
Exhibit ‘5’ Post-mortem report in writing of PW-7/Doctor
Dharam Prakash.
Findings of the Learned Trial Court
8. Having examined the evidences adduced on behalf of
the prosecution and the defence, the learned trial court came to a
conclusion that Mahesh Mistri a man of 27 years was killed one
day before the Holi festival inside his house at the second floor.
The learned trial court has held that the father of the deceased who
is informant in this case and has appeared as PW-3 has made it
clear that he was at the ground floor of the house when Dinesh
Prasad, Rajesh Kumar and Nitish Kumr @ Nimiya armed with
pistol entered into the house, they were hurling abuses while going
upstairs and they were saying that why he had purchased the land.
On the direction of Dinesh, Rajesh Kumar had fired which hit on
the right side of the face of the deceased and died thereafter.
9. The trial court has held that the wife of the informant
(PW-1) and Mahesh Prasad (PW-2) have partly corroborated the
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evidences of PW-3. The I.O. has identified the place of occurrence
which is the house of the deceased and this place of occurrence is
not in dispute.
10. Learned trial court further found that the post-
mortem report made by the Doctor (PW-7) corroborates the ocular
evidence of PW-1, PW-2 and PW-3. One pellet was taken out from
his head which has been produced as Material Exhibit ‘2’. The
learned trial court has also found that from the place of occurrence
0.315 bore empty cell of the fired arms cartridges was seized. The
learned trial court found that the reason behind the killing has also
been disclosed by the prosecution witnesses. The FIR was lodged
within 4-5 hours of the occurrence at the Sadar Hospital, seizure
list-cum-production has been prepared, the inquest report and the
post-mortem report were also prepared, therefore, there is no
chance of any embellishment over the prosecution story.
11. The learned trial court found that there is no
independent witness of this occurrence but this cannot be a ground
to disbelieving the statement of the mother and father of the
deceased because they were very much present in the house at
7:30 P.M. The learned trial court has held that the offences for
which the appellants were charged have been duly proved beyond
all reasonable doubts.
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Submissions on behalf of the Appellants
12. Mr. Ajay Kumar Thakur, learned counsel for the
appellants assisted by Mr. Abhimanyu Singh, learned Advocate
and Mrs. Akrity Aishwarya, learned Advocate, has submitted that
in this case, the prosecution has suppressed the first version. It is
submitted that police had reached the place of occurrence
immediately and had seized the empty shell of the cartridges at the
staircase of the house. The police officer Anita Kumari (PW-6) has
deposed that she had recorded the fardbeyan of Mathur Mistri and
had explained the same to him whereafter he had put his left
thumb impression on the same.
13. It is submitted that PW-6 has stated that she had
prepared the production-cum-seizure list in the Sadar Hospital
showing recovery of one pellet from the head of the deceased
(Mahesh Mistri), it was kept in a sealed plastic dabba. She had
also prepared the inquest report on which Mahesh Prasad (PW-2)
and Rishu Kumar in examination stood witnesses, their signatures
have been exhibited- 4/1 and exhibited- 4/2 respectively on the
inquest report. This witness identified his signature on the inquest
which has been marked as Exhibit-4/3. In paragraph No. 7 of her
deposition, PW-6 has stated that at the time of preparation of the
inquest report nobody had given any statement, it was said that
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they will later give it in writing. It is submitted that the evidence of
PW-6 would show that the prosecution side withheld the
lodgement of the FIR and the fact that the FIR has though been
shown to have been lodged on 09.03.2020 at 23:15 hrs, it reached
the court of learned Judicial Magistrate only on 11.03.2020. It is,
therefore, submitted that the delay in lodging of the FIR and
sending the same to the Court of the learned Judicial Magistrate,
would prove fatal to the prosecution.
14. Learned counsel further submits that in this case,
nothing was found at the place of occurrence when the I.O.
reached there for the first time. In this regard, the evidence of the
I.O. (PW-8) has been pointed out. PW-8 has said in paragraph ‘8’
on his deposition that on the next day of the occurrence, when he
had inspected the place of occurrence, he had not found any blood.
This witness has stated that when he reached the place of
occurrence, wife of the deceased was present but at that time, her
statement was not recorded.
15. It is submitted that PW-8 has stated in his deposition
(paragraph 8) that when he reached the place of occurrence for the
first time, he found that the victim was lying in the varanda, he
claimed that he had lifted the victim and sent him to hospital in his
police vehicle. He could not ascertain as to whether before sending
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the victim to the hospital, he was alive or dead. From the place of
occurrence, he along with the Sub Inspector Anita Kumari, had
gone to the Sadar Hospital. It is submitted that contrary to the
claim of PW-8 that he had sent the victim to the hospital, the father
of the victim (PW-3) has stated that after hearing the sound, it was
Mahesh who had entered the house for the first time, thereafter,
several people came and they lifted away the dead body to the
hospital. Prior to taking the dead body to the hospital, no family
members of this witness has given any information to police. It is,
thus, submitted that while PW-8 claims that he had sent the victim
to the hospital in his police vehicle, the informant claims that he
along with other villagers had taken the victim to the hospital and
no information in this regard was given to police. On the date of
occurrence, he had returned with the dead body from the hospital
at 11:00 P.M.
16. It is submitted that the mother of the victim has been
examined as PW-1. In her examination-in chief, she claims to be a
witness to the occurrence but in the cross-examination, she has
stated in paragraph no. ‘6’ that she heard the sound of firing when
she was sleeping on the ground floor and when she got awaken,
she saw her son dead and in fallen condition. It is stated that PW-1
is not an eye-witness to the occurrence.
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17. Mahesh Prasad (PW-2) is a hearsay witness. He has
signed the inquest report, his signature has been marked as
Exhibit-‘1’ and this witness has stated in his cross-examination
that police had recorded his statement after 10-15 days in the
village itself. He has also stated that he had made his statement on
the basis of the hulla in the village that Mahesh Mistri has been
shot dead by the younger son of Dinesh Prasad and he had died. It
is, thus, submitted that even PW-2 is only a hearsay witness.
18. It is submitted that so far as PW- 4 and PW-5 are
concerned, they are the signatories to the seizure list. PW-4 has
been declared hostile while PW-5 has not supported the
prosecution case.
19. P.W.6 is the police officer who had prepared the
inquest report, had recorded the fardbeyan of the informant and
prepared the production-cum-seizure list. Learned counsel submits
that Dr. Dharam Prakash (P.W.7) was examined on behalf of the
prosecution, who has proved the post-mortem report of Mahesh
Mistri, which has been marked Exhibit-5. The doctor had found
entry wound on right side of forehead 1 inch x ½ inch, bleeding
from occipital region of head and the cause of death was due to the
said injury caused by fire-arm. Bullet was extracted and sealed and
handed over to hawaldar. It is submitted that Dharmendra Kumar
Patna High Court CR. APP (DB) No.339 of 2023 dt.17-02-2026
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(P.W.8) was the then S.H.O. of Deepnagar police station who had
put his signature on the formal FIR. P.W. 8 has stated that he had
not tried to know anything by sending the empty shell and the
recovered pellet from the body of the deceased to the FSL as to
whether the pellet found from the body was fired at the place of
occurrence.
20. P.W.9 is said to be a formal witness who had
produced the Material Exhibit ‘2’ and identified the signature of
the Chief Judicial Magistrate put on the seal of the dabba. Sher
Singh Yadav (P.W.10) is a formal witness who has stated that even
prior to his investigation, the Sub-Divisional Police Officer had in
his progress report dated 30.05.2020 directed for submission of
charge-sheet against the accused. He has also stated that all those
witnesses whose statements were recorded on 07.06.2020 and
steps were taken in this case by the previous I.O. This witness had
not recorded statement of any of the witnesses earlier.
21. Learned counsel for the appellant has relied upon the
judgments of the Hon’ble Supreme Court in the case of Takhaji
Hiraji vs. Thakore Kubersing Chamansing and Others
reported in (2001) 6 SCC 145, Kanhai Mishra Alias Kanhaiya
Misar v. State of Bihar reported in AIR 2001 SC 1113
(paragraphs 7 and 18), Mohan Lal and Others v. State of
Patna High Court CR. APP (DB) No.339 of 2023 dt.17-02-2026
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Rajasthan reported in 2000 Criminal Law Journal 2982 SC,
Nallabothu Ramulu Alias Seetharamaiah and Others v. State
of Andhra Pradesh reported in (2014) 12 SCC 261 (paragraph 17
to 21) and Deny Bora v. State of Assam reported in (2014) 14
SCC 42 to submit that if material witnesses were not examined, an
adverse inference is required to be drawn by the learned trial court.
On these grounds, learned counsel for the appellant submits that
the impugned judgment and order are liable to be set aside.
Submissions on behalf of the State and the Informant
22. The judgment of the learned trial court has been
defended by learned Additional Public Prosecutor for the State and
learned counsel for the informant. It is submitted that the
informant who is the father of the deceased was present in the
house and both father and son had returned home after closing
their shops at about 07:00 PM. It is submitted that the informant
(P.W.3) had withstood the test of cross-examination, the star
witness of this case and his testimony is a wholly reliable piece of
evidence in terms of Section 134 of the Indian Evidence Act.
23. Learned counsel submits that even as the wife of the
deceased happened to be a material witness but her non-production
would not result in drawing of any adverse inference because in
presence of more than one material witnesses if the prosecution has
brought some of them and has proved its case beyond all reasonable
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doubts, then no adverse inference may be drawn only because some
of them have been left out and not examined in trial.
24. Learned counsel further submits that the ocular
evidence of the prosecution witnesses are getting fully corroborated
from the post-mortem report proved by the doctor (P.W.7). It is
submitted that the S.H.O. of Deepnagar police station who has
deposed as P.W.8 seems to have committed some negligence in the
matter of conduct of investigation and had made certain statements
which are indicative that P.W.8 had not visited the place of
occurrence on the very first day and it was Anita Kumari (P.W.6)
who had reached the place of occurrence and from there, she had
gone to the Sadar Hospital. It is submitted that the prosecution has
been able to establish its case beyond all reasonable doubts on the
strength of the evidence of P.W.3 alone which is getting
corroborated from the post-mortem report. The defence has not
taken out any contradiction in the statement of P.W.3 recorded at
the stage of Section 161 CrPC and then in course of trial. P.W.3 has,
therefore, remained consistent.
Consideration
25. Having heard learned counsel for the appellants,
learned counsel for the informant and the learned Additional
Public Prosecutor for the State as also on going through the
records which we have taken note of hereinabove, we find that in
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this case the informant made his fardbeyan in the Sadar Hospital
on 09.03.2020 at 22:50 hours. The informant has stated
categorically that when he was on the ground floor of the house,
the three named accused persons who were armed with pistol
entered into the house, hurling abuses and shot at his son Mahesh
Mistri, as a result whereof Mahesh Mistri died, whereafter he and
his family members concealed themselves as all the three had gone
giving threat that whosoever will speak or lodge a case shall be
killed. The informant has given the reasons about the occurrence
as according to him he had purchased three and half decimal of
land in the month of November 2019, since then the accused
persons were harassing him and his family members.
26. In course of trial, the informant has been examined
as P.W.3. He has stated in his examination-in-chief that Dinesh
Prasad, Rajesh Kumar and Nitish Kumar all the three had pistol in
their hands and they were going on the stairs of the house hurling
abuses and were saying that why he had purchased the land. This
witness has stated that on the asking of Dinesh Prasad, Rajesh
Kumar shot at the deceased Mahesh which hit on the right side of
his face. This witness has further stated that when they were
returning from the second floor of the house then they said that
whosoever will lodge a case or will stop them they would be
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killed. This witness has identified all the accused in the dock. In
his cross-examination this witness has stated that his statement
was recorded in Sadar Hospital and at that time his wife was not
there in the hospital. In his village hospital Mahesh ji, Chandan
Sipahi and 8-10 persons were there, who had brought the dead
body to the hospital. His son had died in the village itself and in
the house the female members, who are wife of the deceased and
the wife of the informant had remained. He was aware that when
he had gone to the hospital, in his absence police had come to the
house and had enquired. In paragraph-5 of the deposition, he has
stated that when police had come in his absence in the village,
statement of the wife of the deceased was taken. At that time,
police had not enquired from the wife of the informant. On that
very day in the night, he had returned with the dead body from the
Sadar Hospital in the village whereafter police had not come,
police came after two days.
27. This Court finds that Anita Kumari (P.W.6) and the
S.H.O. (P.W.8) have stated that they had gone to the place of
occurrence and according to S.H.O. (P.W.8), he had sent the victim
to the hospital in the police vehicle, however, in course of her
examination-in-chief, the S.I., Anita Kumari (P.W.6) has not stated
that she had gone to the place of occurrence with the S.H.O.
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(P.W.8). P.W.6 has stated that she had recorded the fardbeyan of
Mathur Mistri and had explained him. She has stated that she had
prepared the seizure list on 09.03.2020 showing recovery of the
empty shell of the cartridge on which Chhote Mahto and Brij
Nandan Mahto had stood as witnesses. It is evident from the
statement of P.W.6 that she does not say that she had gone to place
of occurrence with P.W.8, therefore, this Court is of the opinion
that the statement of P.W.8 saying that he had gone to the place of
occurrence and had sent the victim to the hospital is not believable.
To this Court, it appears that after the dead body of the victim had
already been taken away to the Sadar Hospital, Bihar Sharif,
Nalanda, behind the back of the informant and other male
members, Anita Kumari (P.W.6) had come, she had prepared the
seizure list of the empty shell and, thereafter, she had left for the
Sadar hospital, Bihar Sharif, where she had recorded the
fardbeyan of the informant. In her cross-examination, P.W.6 has
stated that when she had gone to the place of occurrence, family
members were present inside the house but who were those family
members inside the house she had not recorded and she had not
made any of the family members of the house a witness to the
seizure list. She had called the two seizure list witnesses at the
time of seizure. It is evident from the evidence of P.W.6 that she
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does not talk about even meeting with the wife of the deceased or
with the wife of the informant at the time of preparation of the
seizure list. It is evident that she had not asked for any statement
by the female members of the family when she had gone to the
place of occurrence. In such circumstance, this Court is of the
opinion that the plea that the prosecution has suppressed the first
version of the prosecution case and that would give a blemish to
the FIR is liable to be rejected.
28. To this Court, it appears that P.W.3 is the star witness
of this case, his presence in the house has not been questioned and
he seems to be natural in saying that because of the threat of life,
he and his other family members had concealed themselves. He
had seen the three accused persons armed with pistol going
upstairs in his house and then on the order of Dinesh Prasad, the
appellant Rajesh Kumar shot at the deceased, which proved fatal
to his life. P.W.3 has withstood the test of cross-examination and
this Court does not find any material contradiction in his evidence.
29. Learned counsel for the appellants has relied upon
several judgments of the Hon’ble Supreme Court, which we have
taken note of, to strengthen his submission that if the material
witnesses were not examined, an adverse inference is required to
be drawn by the learned court. We have carefully gone through the
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judgments of the Hon’ble Supreme Court. It is well settled that if
the prosecution has brought some of the material witnesses and has
proved its case beyond all reasonable doubt, then no adverse
inference may be drawn only for the reason that one of them has
not been examined in trial. Therefore, in the facts of this case, we
are not impressed with this submission of the learned counsel for
the appellants.
30. The ocular evidence of P.W.3 is getting fully
corroborated from the medical evidence brought on the record. Dr.
Dharam Prakash (P.W.7) has proved the postmortem report of the
deceased, which has been marked Exhibit ‘5’. The doctor has
found entry wound on the right side of the forehead 1”×1/2”,
bleeding from the occipital region of head and the cause of death
was due to the said injury caused by firearm. The bullet was
extracted and sealed and the same has been produced as a material
exhibit in course of trial through P.W.9.
31. We have noticed that in this case, the S.H.O.
Dharmendra Kumar (P.W.8) has himself stated that he had not
tried to know anything by sending the empty shell and the
recovered pellet from the body of the deceased to the FSL. This is
indicating that P.W.8 was not taking appropriate steps as required
in course of investigation, from his deposition itself, it is evident
Patna High Court CR. APP (DB) No.339 of 2023 dt.17-02-2026
20/20
that he had gone for inspection of the place of occurrence on the
next day of the occurrence. Learned counsel for the defence has
tried to take advantage of this lapse on the part of P.W.8, however,
we are of the considered opinion that this delay on the part of
P.W.8 in inspecting the place of occurrence and then in sending of
the FIR would not endure benefit to the accused-appellant. The
prosecution has proved its case beyond all reasonable doubts and
we find no reason to interfere with the judgment of the learned
trial court.
32. Both the appeals are dismissed.
33. Let the trial court’s records along with the copy of
the judgment be sent down to the learned trial court.
(Rajeev Ranjan Prasad, J)
(Praveen Kumar, J)
Jyoti/-
AFR/NAFR
CAV DATE
Uploading Date 24.02.2026
Transmission Date 24.02.2026
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