Patna High Court
MD. NIZAMUDDINversusThe State of Bihar
- Decided
- Disposal
- DISMISSED
Holding
The appellate court dismissed the appeal, upholding the acquittals and finding no error in the trial court’s judgment.
Summary
The case arose from a violent incident on disputed land in Samastipur where the informant, Md. Nizamuddin, alleged that 23 persons looted construction materials and assaulted him and others. The trial court acquitted fifteen of the accused, convicting only three (Md. Akhlak, Md. Hussain and Md. Umar) for offences under Sections 323 and 325 IPC and granting them probation. The appellant challenged the acquittals and the conviction under Section 307 IPC, arguing that the evidence identified the accused and that the probation order was illegal. The High Court examined the credibility of the informant’s statement, the hostile nature of many witnesses, and the lack of corroborative medical and forensic evidence, concluding that the trial court’s view was a permissible one on the record. It held that the ingredients of Section 307 IPC were not established and that the benefit of the Probation Act cannot be appealed, thereby dismissing the appeal.
Issues considered
- The trial court erred in acquitting fifteen accused despite the prosecution’s evidence.
- Whether the three convicted persons should have been found guilty of the more serious offence under Section 307 IPC.
- Whether an appeal can be entertained against the grant of probation under Section 4 of the Probation of Offenders Act, 1958.
- Whether the appeal against acquittal is maintainable under Section 378 of the CrPC.
Legislation cited
- Criminal Procedure Code — s. 313, 372, 378
- Indian Penal Code — s. 144, 147, 148, 307, 323, 324, 325, 337, 341, 379, 447, 504
- Probation of Offenders Act, 1958 — s. 4
Subjects
- land dispute
- assault
- robbery
- acquittal
- appeal against acquittal
- Probation of Offenders Act
- IPC sections 307, 323, 325
- evidentiary credibility
- hostile witnesses
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.491 of 2023
In
CRIMINAL APPEAL (SJ) No.3718 of 2022
Arising Out of PS. Case No.-4 Year-2000 Thana- KHANPURA District- Samastipur
======================================================
Md. Nizamuddin, Son of Md. Mohiuddin, Resident Of Village- Shirpur Gahar
Tola, Ward No. 3, PS- Khanpur, Distt- Samastipur
... ... Appellant
Versus
1. The State of Bihar
2. Md. Najib Akhtar, Son Of Late Sayed Akhtar, Resident Of Village- Shirpur
Gahar Tola, PS- Khanpur, Distt- Samastipur
3. Md. Nasim Akhtar, Son Of Late Sayed Akhtar, Resident Of Village- Shirpur
Gahar Tola, PS- Khanpur, Distt- Samastipur
4. Md. Hussain, Son Of Late Sayed Akhtar, Resident Of Village- Shirpur Gahar
Tola, PS- Khanpur, Distt- Samastipur
5. Md. Milan, Son Of Late Sayed Akhtar, Resident Of Village- Shirpur Gahar
Tola, PS- Khanpur, Distt- Samastipur
6. Md. Umar Son Of Late Ahmad Hussain, Resident Of Village- Shirpur Gahar
Tola, PS- Khanpur, Distt- Samastipur
7. Md. Munif, Son Of Late Ahmad Hussain, Resident Of Village- Shirpur
Gahar Tola, PS- Khanpur, Distt- Samastipur
8. Md. Shamim Son Of Late Md. Monif, Resident Of Village- Shirpur Gahar
Tola, PS- Khanpur, Distt- Samastipur
9. Md. Nasim Akhtar, Son Of Md. Monif, Resident Of Village- Shirpur Gahar
Tola, PS- Khanpur, Distt- Samastipur
10. Md. Aalmin Son Of Late Md. Monif, Resident Of Village- Shirpur Gahar
Tola, PS- Khanpur, Distt- Samastipur
11. Md. Ishrael Son Of Late Abdul Majid, Resident Of Village- Shirpur Gahar
Tola, PS- Khanpur, Distt- Samastipur
12. Md. Faruqe Son Of Md. Israel, Resident Of Village- Shirpur Gahar Tola, PS-
Khanpur, Distt- Samastipur
13. Md. Akhlak, Son Of Late Md. Israel, Resident Of Village- Shirpur Gahar
Tola, PS- Khanpur, Distt- Samastipur
14. Md. Asho Son Of Md. Israel, Resident Of Village- Shirpur Gahar Tola, PS-
Khanpur, Distt- Samastipur
15. Md. Alauddin Son Of Late Hefajat Hussain, Resident Of Village- Shirpur
Gahar Tola, PS- Khanpur, Distt- Samastipur
16. Md. Hamiddullah Son Of Aabid Hussain, Resident Of Village- Shirpur
Gahar Tola, PS- Khanpur, Distt- Samastipur
17. Md. Bablu Son Of Late Md. Lalbabu, Resident Of Village- Shirpur Gahar
Tola, PS- Khanpur, Distt- Samastipur
18. Abdul Gaffar, Son Of Late Abdul Jalil Resident Of Village- Shirpur Gahar
Patna High Court CR. APP (DB) No.491 of 2023 dt.22-06-2026
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Tola, PS- Khanpur, Distt- Samastipur
19. Abdul Sattar Son Of Late Abdul Jalil, Resident Of Village- Shirpur Gahar
Tola, PS- Khanpur, Distt- Samastipur
20. Md. Ejharul Son Of Late Md. Sahebjan, Resident Of Village- Shirpur Gahar
Tola, PS- Khanpur, Distt- Samastipur
21. Md. Shoiab Son Of Md. Shakur Alam, Resident Of Village- Shirpur Gahar
Tola, PS- Khanpur, Distt- Samastipur
22. Md. Raja Son Of Abdul Sattar, Resident Of Village- Shirpur Gahar Tola, PS-
Khanpur, Distt- Samastipur
23. Md. Ladle Son Of Late Abdul Kadir, Resident Of Village- Shirpur Gahar
Tola, PS- Khanpur, Distt- Samastipur
... ... Respondent/s
======================================================
Appearance :
For the Appellant : Mr. Ramakant Sharma, Sr. Advocate
Mr. Binod Kumar Singh, Advocate
For the State : Mr. Mukeshwar Dayal, APP
For the Pvt. Respondent : Mr. Piyush Kumar Pandey, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE KUMAR MANISH
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 22-06-2026
Heard learned counsel for the appellant, learned counsel
for the Respondent Nos. 2 to 23 and learned Additional Public
Prosecutor for the State.
2. The present appeal arises out of judgment of acquittal
dated 07.07.2022 (hereinafter referred to as the 'impugned
judgment') passed by learned 7th Additional Sessions Judge,
Samastipur (hereinafter referred to as the 'learned trial court') in
Sessions Trial No. 37 of 2002 (CIS No. 2139 of 2014) arising out
of Khanpur P.S. Case No. 04 of 2000 whereby and whereunder
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Respondent Nos. 2, 4, 6 to 11 and 13 to 23 have been acquitted of
the charges under Sections 337, 379, 147, 307, 323, 148, 324 and
325 of the Indian Penal Code (in short 'IPC'), however Respondent
No. 3, 5 and 12 were released on the condition of submitting a
bond of peace and morality for one year under Section 4 of the
Probation of Offenders Act, 1958.
Prosecution Case
3. The prosecution case is based on the fardbeyan of the
informant Md. Nizamuddin (appellant herein) recorded on
01.02.2000 at 12:30 PM in Sadar Hospital Samastipur by A.S.I.
Ramakant Pathak Town Police Station Samastipur. He alleged that
on 30.01.2000 at 09:00 PM, he had gone to the house of his
maternal uncle Abdul Ajij situated in his village carrying a bag
containing Rs. 3,000/- sent by his son and brother from Delhi,
one woolen cloth sheet as also his three passbooks and advocate
clerk's license. When he was inside the maternal uncle's home, he
heard halla after some time, on hearing this informant went 100
gaj south to his maternal uncle's house where he saw that
construction work of Md. Immamuddin's house was going on and
his villagers, namely, 1. Sayeed Akhtar, 2. Najib Akhtar, 3. Nasim
Akhtar, 4. Md. Hussain, 5. Md. Millan, 6. Md. Umar, 7. Md.
Munnif, 8. Md. Shamim, 9. Md. Nasim, 10. Md. Aalmin, 11. Md.
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Ishrael, 12. Md. Faruqe, 13. Md. Akhlak, 14. Md. Asho, 15. Md.
Alauddin, 16. Md. Hamiddullah, 17. Md. Bablu, 18. Abdul Gaffar,
19. Abdul Sattar, 20. Md. Ejharul, 21. Md. Shoiab, 22. Md. Raja
and 23. Md. Ladle having lathi, bhala, gandasa reached there
throwing stones and they took away 25 bag cement worth Rs.
3500/-, two bicycles, eight iron axe, four buckets, four spade and
four blankets and also made the labourers fled from there. After
some time, all the above named persons having lathi, bhala,
gandasa reached there hurling abuses and Md. Ladle snatched
silver ornament from the neck of Hamida Khatoon after entered
into the house of Md. Abdul Ajij and on protest assaulted on her
head by danda which caused bleeding injury and she become
unconscious. Md. Ladle also assaulted Abdul Ajij by danda. Md.
Akhlak caused injury on the right hand of Md. Mohiuddin by
bhala and Md. Hussain also assaulted him by lathi as a result of
which he became unconscious. When the informant forbade them,
then Md. Ladle caught hold him and all the persons encircled him.
On the saying of Sayeed Md. Umar hurled gandasa on his head
which was defended by the informant from his right hand which
caused injury on his head and bleeding injury on his head. Md.
Hussain assaulted the informant by lathi causing fracture on his
right hand. Informant alleged that Najib Akhtar, Hammidullah and
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Ejharul also assaulted him. Informant's watch worth Rs. 1300/-
was taken away by Md. Nasim Akhtar and Informant's bag having
documents was taken away by Md. Umar. Informant alleged that
after causing assault the accused persons fled away to their
respective houses. The reason behind the occurrence has been
stated to be the old enmity and land dispute.
4. On the basis of the fardbeyan of the informant (P.W.
4), Khanpur P.S. Case No. 04 of 2000 dated 05.02.2000 was
registered under Sections 144, 341, 323, 324, 325, 307, 337, 447,
379, 504 of the I.P.C against 23 accused persons.
5. After investigation, police submitted chargesheet
bearing Chargesheet No. 24 of 2000 dated 31.05.2000 has been
filed showing the accused Sayeed Akhtar not sent-up for trial.
Accordingly, learned Magistrate took cognizance of the offence
under Sections 144, 341, 323, 324, 325, 307, 337, 448, 379 and
504 of the I.P.C against 22 accused persons. After supply of police
paper, the records were committed to the court of session on
26.09.2001 for trial. Before the Trial Court, charges were
explained to the accused persons to which they denied accordingly
charges under Sections 147, 307, 323, 148, 307, 325, 337 and 379
I.P.C. were framed against the accused persons by the learned Trial
Court vide order dated 17.08.2006.
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6. In course of trial, the prosecution examined as many
as ten witnesses and got exhibited various documentary evidence.
The description of the prosecution witnesses and the list of
documents exhibited on behalf of prosecution are provided
hereunder for ready reference in a tabular form:-
List of Prosecution Witnesses
Prosecution Name of Witness Description
witness No.
1. Md. Imammuddin present at the place of occurrence
2. Md. Jamaluddin reached at the place of occurrence
on hearing hulla
3. Md. Masle Uddin chance witness
4. Md. Nijamuddin Informant
5. Md. Ishaak Hostile witness
6. Sami Ahmad Hostile witness
7. Ramswarath Ray Tendered
8. Md. Shamim reached at the place of occurrence
on hearing hulla
9. Satyendra Kumar Sinha Investigating Officer
10. Dr. Arun Kumar Jha Identified the signature of treating
doctor on injury report
List of Exhibits on behalf of Prosecution:-
Exhibit No. Description of the Exhibit Proved by/
Attested by
Exhibit-01 Fardbeyan PW-4
Exhibit-01/1 Signature of Station House Officer PW-9
Singheswar Ravidas
Exhibit-2 Injury report of Hamida Khatun PW-10
Exhibit-02/1 Injury report of Md. Nizamuddin PW-10
Exhibit-02/2 Injury report of Md. Moiuddin PW-10
Exhibit-3 Certified copy of FIR of Khanpur
Police Station No.- 55/10
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7. Thereafter, statement of the accused persons were
recorded under Section 313 Cr.P.C. in which they claimed their
innocence and some documentary evidences were produced on
behalf of the defence which have been exhibited and the same are
in tabular form herein below:-
List of Exhibits on behalf of defence:-
Exhibit No. Description of Exhibit Proved by/
Attested by
Exhibit-A Certified copy of judgment passed in
Criminal Revision no.- 20/2000
Exhibit-B Certified copy of order dated 30.11.1999
passed by S.D.M. Samastipur in M.R.
Case No.-1192/99
Exhibit-C Certified copy of Partition Suit No.-
271/99
Exhibit-D Certified copy of judgment passed in
C.R. No.- 315/87, G.R. No.- 99/2000
Exhibit-E ordersheet of Complaint Petition No.-
882/97
Exhibit-F Certified copy of Complaint Petition
No.- 882/97
Exhibit-G Certified copy of evidence given by Md.
Umar in C.R No.- 882/977, T.R.- 321/01
Exhibit-H Certified copy of order passed in
Criminal Revision No.- 48/03
Findings of the Learned Trial Court
8. The learned trial court having examined the evidences
adduced by the prosecution found that the informant had
impleaded 23 persons, out of them five accused had died therefore,
the trial proceeded only against the other remaining accused
persons.
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9. It has been held that from the evidences adduced by
the prosecution and the defence it appeared that due to land
dispute between both the parties for last several years, they were
inimical to each other and on many occasions both the parties have
lodged cases against each other.
10. The learned trial court found that the prosecution
had failed to establish the charges against accused the persons (1)
Md. Nazib Akhtar (2) Nasim Akhtar (3) Md. Milan (4) Md.
Shamim (5) Md. Nasim (6) Md. Aalmin (7) Md. Faruqe (8) Md.
Asho (9) Md. Alauddin (10) Md. Bablu (11) Abdul Gaffar (12)
Md. Ejharul (13) Md. Shoaib (14) Md. Raja and (15) Md Ladle.
Since the prosecution could not to prove their guilt beyond all
reasonable doubts, the learned trial court has acquitted them all of
the charges.
11. So far as the accused (1) Md. Akhlak, (2) Md.
Hussain and (3) Md. Umar are concerned, the learned trial court
has held them guilty for the offences punishable under Sections
323 and 325 of the IPC. The charges under Sections 337, 379, 307,
147, 148 and 324 IPC could not be established against these
appellants. Therefore, they have been acquitted of those charges.
The trial court held that on perusal of the evidences of the
prosecution witnesses which are supported by the injury reports, it
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is found that some of the injuries were of simple nature whereas
some of them were grievous in nature. These injuries have been
caused by the three accused, namely, (1) Md. Akhlak, (2) Md.
Hussain and (3) Md. Umar therefore, the charges under Sections
323 and 325 IPC are proved beyond all the reasonable doubts
against them.
Submissions on behalf of the appellant
12. Mr. Ramakant Sharma, learned Senior counsel for
the appellant, has assailed the impugned judgment of the learned
trial court. It is submitted that the learned trial court has acquitted
fifteen accused persons even as they have been specifically named
by all the prosecution witnesses that they had entered into the
house of the maternal uncle of the informant and had taken away
25 bags of LT cement costing Rs. 3500/- approximately, two Hero
Royal bicycles and other articles. It is submitted that according to
the prosecution case, Md. Ladle had snatched the silver made
Hansuli from the neck of Hamida Khatoon, wife of Abdul Ajij and
assaulted her on her head because of which she started bleeding.
Md. Ladle had also assaulted Abdul Ajij by danda. Md Akhlak had
given spear blow injury on the left hand of Mohiuddin and Md.
Hussain also assaulted him by lathi as a result whereof he became
unconscious.
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13. The informant has stated in the FIR that Md. Ladle
caught hold of him by his waist and all other accused persons had
surrounded him whereafter Sayeed Akhtar instigated them by
saying that it is this person who is causing trouble to them by
getting the cases lodged against them. On this, Md. Umar had
assaulted the informant by lathi which injured the hand of the
informant. He has stated that Md. Hussain had also assaulted him
by a lathi causing fracture of his left hand. The informant has
stated that the cause of occurrence is an old enmity on account of
land dispute.
14. Learned Senior counsel submits that the learned trial
court has erred in not only acquitting the fifteen accused persons
but also by acquitting the three accused persons namely (1) Md.
Akhlak, (2) Md. Hussain and (3) Md. Umar for the offences
punishable under Section 307 IPC. The trial court has further
shown favour to these accused persons by convicting them for the
lesser offence under Sections 323 and 325 IPC and then after
imposing a sentence of only one year imprisonment, the learned
trial court gave the convicts benefit of the Probation of Offenders
Act.
15. It is submitted that the accused persons had also
criminal antecedents but this has not been been taken into
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consideration by the learned trial court therefore, the order of the
learned trial court releasing the convicts under the Probation of
Offenders Act is an illegal and arbitrary order which is liable to be
set aside.
Submissions on behalf of the Respondents
16. On the other hand, learned counsel for the
respondents and learned Additional Public Prosecutor for the State
have opposed the appeal. It is submitted that the learned trial court
has appreciated each and every aspect of the evidence. It is the
own case of the informant that the cause of occurrence is the prior
enmity on account of land dispute between the parties. In such
circumstances, false and over implication of the accused surfaced
in course of trial. The learned trial court has, therefore, rightly
acquitted the fifteen accused persons.
17. It is further submitted that so far as the three accused
persons who have been convicted by the learned trial court are
concerned, against them there was no material on the record that
they had criminal antecedents. In such circumstance, the learned
trial court has given benefit of Section 4 of the Probation of
Offenders Act to the three convicts, therefore, no fault may be
found with the same.
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18. Learned counsel submits that both the parties are co-
sharers. Jaan Ali and Gulam Rasul were two full brothers.
Prosecution side is the descendant of Jaan Ali whereas the accused
persons are the descendants of Gulam Ali. They are fighting over
their claim in respect of some of the lands. It is submitted that in
the First Information Report, the informant claimed that Hamida
and Mohiuddin were also injured but in course of trial, neither
Hamida nor Mohiuddin appeared to support the prosecution case.
No plausible reason for their withholdment has been shown by the
prosecution. Their injury reports have not been exhibited in course
of trial.
19. Learned counsel submits that PW-5 and PW-6 have
been declared hostile whereas PW-7 has been tendered by the
prosecution. PW-9 is the I.O. of the case who has stated that after
he reached the place of occurrence in village Shirpur Gahar, he
found that the disputed land of Md. Immamuddin is approximately
three kattha, in the western part of the land, Immamuddin was
constructing a house, the construction materials were present there
and plinth of the house was being constructed by brick and mud
(mixture of soil and other items). At the south east corner of the
house, there is a hut of Abdul Ajij in which the construction
materials such as cement etc. were said to be stored and those were
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looted away. He found the bricks and pieces of bricks etc. at the
place of occurrence lying in scattered condition. This witness has
stated that Md. Sayeed Akhtar who was posted as Dafadar in the
police station was not found involved in the occurrence.
20. It is submitted that in his cross-examination, the I.O.
(PW-9) has stated that at the place of occurrence, in past, action
under Section 144 Cr.P.C. was taken. Abdul Ajij had told him that
the construction of the house was taking place after the decree. It
is submitted that the prosecution never proved any decree in their
favour by any competent court of law. The defence has exhibited
several documentary evidences to demonstrate that the land in
question is a disputed land. There was no reason for the informant
to be present at the place of occurrence.
21. The I.O. has further stated in paragraph '12' of his
deposition that the occurrence is of 30.01.2000 but the fardbeyan
of the informant (PW-4) has been recorded in the police station on
05.02.2000. He had not found any blood or blood soil at the place
of occurrence, he had not seized any blood stained cloth. The I.O.
has stated that 144 Cr.P.C. proceeding was initiated and one FIR
being no. 10 of 1999 dated 23.11.1999 was registered. He has
further stated in the case diary that the allegation of looting away
the tagari, kudal, hasuli, etc. are not true as told by the witnesses.
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The independent witnesses Shami Alam, Anwarul Haque, Haur
Ali, Ramswarath Ray and Md. Jabbar had given their statements
but they are not mentioned in the boundary of the place of
occurrence.
22. Learned counsel further submits that PWs-1,2,3 and
4 are said to have supported the prosecution case but they are
highly inimical witnesses and their depositions are to be
considered with all circumspection and care. They have admitted
that the construction was taking place on plot no. 1292. It will
appear that PW-1 is himself claiming one kattha three dhur in plot
no. 1292, therefore, he is himself a party to the rival claim. No
independent witness has come to depose. So far as PW-4 is
concerned, he claims to have gone to the house of his maternal
uncle Abdul Ajij where the occurrence took place. He claimed that
after getting assault, he had become unconscious and his statement
was recorded in hospital. This witness has proved his signature on
the statement which is Exhibit-'1' but the ASI Ramakant Pathak
who is said to have recorded the fardbeyan of the informant has
not been examined in course of trial. Therefore, the whole
fardbeyan of the informant has not been marked exhibit. It would
appear that this PW-4 is an Advocate Clerk and he claimed himself
in unconscious condition only to explain the delay. He has stated
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that when he became conscious, he found Abdul Ajij, Mohiuddin
and Hamida Khatoon were in conscious condition.
23. It is further submitted that from the evidence of Dr.
Arun Kumar Jha (PW-10), it would appear that it was Dr. B.K.
Verma who had examined the injured persons. Dr. B.K. Verma had
died, therefore, PW-10 has identified the writing and signature of
Dr. B.K. Verma on the injury reports marked Exhibit '2', Exhibit
'2/1' and Exhibit '2/2'. It is submitted that in absence of Dr. B.K.
Verma, who had examined the injured persons, the defence had no
opportunity to cross-examine the doctor who had occasion to
notice the injuries. Further, the reports seem to have been based on
the X-Rays but neither the X-Ray plate nor the X-Ray report have
been proved. Rather it appears that the X-Ray was perhaps done in
a private centre namely Modern Janch Ghar, Kashipur, Samastipur.
The person who did the X-Ray work in the private centre has not
deposed.
24. Learned counsel submits that the two injured namely
Hamida and Mohiuddin have not deposed in course of trial. The
occurrence is of the year 2000. By now, 26 years have gone and
the parties are residing peacefully. The members of the family of
Abdul Ajij, who is the maternal uncle of the informant, has chosen
not to prefer any appeal against the impugned judgment and order.
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25. It is further submitted that this appeal is against
acquittal, there cannot be any appeal against the benefit given to
the accused persons under Section 4 of the Probation of Offenders
Act. In this regard, learned counsel has relied upon the proviso to
Section 372 CrPC to show that the victim’s appeal may be
preferred only against the acquittal of the accused and conviction
for a lesser offence or for award of lesser compensation.
Consideration
26. Having heard learned counsel for the appellant,
learned counsel for the private respondents and learned Additional
Public Prosecutor for the State as also on perusal of the records,
we find that in this case Md. Nijamuddin (PW-4) is the informant
of the case whose fardbeyan is said to have been recorded by ASI
Ramakant Pathak (not examined) on 01.02.2000 at 12:30 in Sadar
Hospital, Samastipur. This is regarding the occurrence which took
place on 31.01.2000 at about 9:00 AM, the place of occurrence is
the disputed land bearing plot no. 1292 on which Md. Imamuddin,
Son of Late Sirajuddin was constructing a house. In his fardbeyan,
the informant (PW-4) has named 23 persons as accused and
alleged that all of them came armed with lathi, bhala and gandasa
and they were throwing bricks and stones. They reached at the
place of occurrence and from there they entered into the darwaja
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of Abdul Aziz and looted away the construction materials. The I.O.
(PW-9) has stated that near the construction site there was a hut of
Abdul Aziz in which the construction materials were said to have
been stored but in course of investigation, the witnesses told him
that the allegations of looting away all those materials are not true.
27. The informant (PW-4) has stated that Hamida
Khatoon was assaulted on her head by Md. Ladle and she was
bleeding from her head but the I.O. (PW-9) did not find any blood
stained soil at the place of occurrence. According to the informant,
apart from him Hamida Khatoon and Md. Mohiuddin were the two
other injured of the occurrence but it is found that neither Hamida
Khatoon nor Md. Mohiuddin have turned up to depose in course of
trial.
28. This Court further finds that PW-5 and PW6, namely
Md. Ishaque and Shami Ahmed who were named as independent
witnesses by the I.O. (PW-9) have not supported the prosecution
case as they have turned hostile. The another independent witness
Ramswarath Rai (PW-7) has been tendered by the prosecution.
29. This Court further finds that so far as Md.
Imamuddin (PW-1), Md. Jamaluddin (PW-2) and Md. Masleuddin
(PW-3) are concerned, they are highly inimical witnesses. In
course of his deposition, PW-1 has claimed that plot no. 1292 is
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measuring area two kattha six dhur of which one kattha three dhur
would belong to him. He has stated that both the parties belong to
the same ancestor. PW-1 is the descendant of Jaan Ali whereas the
defendants are the descendants of Gulam Rasool. This Court finds
that PW-2 is the full brother of the informant (PW-4). Imamuddin
is the uncle of PW-2. He has stated that he was in hospital when
the statement of Nijamuddin was recorded but his statement was
not recorded. PW-2 has stated that his statement was recorded after
21-25 days and along with him, the statement of Imamuddin,
Masleuddin, Samiuddin and others were recorded. It is, thus,
evident that PW-2 has been examined in course of examination
after a lapse of substantial period of 21-25 days. Similarly,
Masleuddin (PW-3) has also been examined after 21-25 days.
They are closely related to the prosecution side. Therefore, it
would not be safe to convict all the accused persons who were
facing charges on the basis of their general and omnibus
allegations.
30. This Court, therefore, finds that the learned trial
court has not committed any error in acquitting fifteen named
accused persons who were facing charges.
31. So far as the conviction of the other three accused
under Sections 323 and 325 IPC are concerned, the contention of
Patna High Court CR. APP (DB) No.491 of 2023 dt.22-06-2026
19/21
learned Senior Counsel for the appellant is that they were to be
convicted under Section 307 IPC but we are of the considered
opinion that in the nature of occurrence and the manner in which it
is said to have taken place over construction of a house on a
disputed piece of land, the ingredients of Section 307 IPC would
not be made out. We are not making any comment on the
conviction under Sections 323 and 325 IPC as the convicts are not
before us in appeal. The only matter related to the conviction of
the three accused under Sections 323 and 325 IPC is with regard to
the lesser sentencing and benefit given to the convicts under
Section 4 of the Probation of Offenders Act. We are of the
considered opinion that under proviso to Section 372 CrPC, no
appeal would lie for a lesser sentencing and for giving benefit of
Section 4 of the Probation of Offenders act to the convicts.
32. In our considered opinion, we would not go into that
aspect of the matter by extending the scope of the appeal beyond
the statutory sanction. We are dealing with an appeal against
acquittal and the principles governing the appeals against acquittal
are well settled by judicial pronouncements on the subject. In the
case of H.D. Sundara and Others Vs. State of Karnataka
reported in (2023) 9 SCC 581, the Hon’ble Supreme Court has
Patna High Court CR. APP (DB) No.491 of 2023 dt.22-06-2026
20/21
reiterated the principles which we quote hereunder for a ready
reference:-
“8. In this appeal, we are called upon to
consider the legality and validity of the
impugned judgment1 rendered by the High
Court while deciding an appeal against
acquittal under Section 378 of the Code of
Criminal Procedure, 1973 (for short “CrPC”).
The principles which govern the exercise of
appellate jurisdiction while dealing with an
appeal against acquittal under Section 378
CrPC can be summarised as follows:
8.1. The acquittal of the accused further
strengthens the presumption of innocence;
8.2. The appellate court, while hearing an
appeal against acquittal, is entitled to
reappreciate the oral and documentary
evidence;
8.3. The appellate court, while deciding an
appeal against acquittal, after
reappreciating the evidence, is required to
consider whether the view taken by the
trial court is a possible view which could
have been taken on the basis of the
evidence on record;
8.4. If the view taken is a possible view, the
appellate court cannot overturn the order of
acquittal on the ground that another view
was also possible; and
1. State of Karnataka v. H.K. Mariyappa, 2010 SCC OnLine Kar 5591
Patna High Court CR. APP (DB) No.491 of 2023 dt.22-06-2026
21/21
8.5. The appellate court can interfere with
the order of acquittal only if it comes to a
finding that the only conclusion which
can be recorded on the basis of the
evidence on record was that the guilt of the
accused was proved beyond a reasonable
doubt and no other conclusion was
possible.”
33. In result, we find no merit in this appeal. It is dismissed
accordingly.
34. Let a copy of this judgment together with the trial
court’s records be sent down to the learned trial court immediately.
(Rajeev Ranjan Prasad, J)
(Kumar Manish, J)
anjali/Rishi-
AFR/NAFR
CAV DATE
Uploading Date 25.06.2026
Transmission Date 25.06.2026
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