Patna High Court
Manoj RaiversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- ALOK KUMAR PANDEY
Holding
The convictions under Sections 307, 448 read with 34 IPC and Section 27 Arms Act are not sustainable and are set aside due to evidentiary infirmities.
Summary
The appellants Bipin Rai and Manoj Rai were convicted under Sections 307, 448 (read with 34) of the IPC and Section 27 of the Arms Act for allegedly firing on an informant at a village chabutra. The prosecution relied on the informant’s testimony and several witnesses, but the defence highlighted material inconsistencies regarding the place of occurrence, the identity of the shooter, and the lack of forensic evidence. The trial court accepted the prosecution’s version despite the investigating officer’s statement that the firing occurred outside the house and no weapons or ammunition were seized. The High Court found that the prosecution failed to prove the offences beyond reasonable doubt, noting contradictory witness statements, the absence of the doctor who prepared the injury report, and the unreliability of the informant’s later altered testimony. Consequently, the Court set aside the convictions and ordered the immediate release of the appellants. Both appeals were allowed.
Issues considered
- Whether the facts established a culpable offence under Sections 307, 448 read with 34 of the IPC and Section 27 of the Arms Act.
- Whether the prosecution proved the place of occurrence and the identity of the assailants beyond reasonable doubt.
- Whether the injury report without the doctor’s testimony is admissible as evidence.
Legislation cited
- Arms Act — s. 27
- Indian Penal Code — s. 307, 326, 34, 448
Subjects
- attempted murder
- house trespass
- illegal possession of firearm
- injury report admissibility
- conviction set aside
- reasonable doubt
- evidentiary inconsistencies
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.1412 of 2025
Arising Out of PS. Case No.-368 Year-2022 Thana- MOKAMAH District- Patna
======================================================
Bipin Rai @ Bipin Ray S/O Late Tripit Rai @ Late Tripit Rai R/O Village-
Makra Naya Tola, P.S.- Mokama, Dist.- Patna.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
with
CRIMINAL APPEAL (SJ) No. 1524 of 2025
Arising Out of PS. Case No.-368 Year-2022 Thana- MOKAMAH District- Patna
======================================================
Manoj Rai S/o Deep Lal Rai @ Deepu Rai @ Dipu Rai Resident of Village-
Mekra, P.S-Mokama, District-Patna
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
Appearance :
(In CRIMINAL APPEAL (SJ) No. 1412 of 2025)
For the Appellant : Mr. Rananjay Kumar, Adv.
For the State : Mrs. Anita Kumari Singh, APP
(In CRIMINAL APPEAL (SJ) No. 1524 of 2025)
For the Appellant : Mr. Giridhar Gopal Tiwary, Adv.
Mr. Prem Ranjan Kumar, Adv.
Mr. Brajesh Prasad Gupta, Adv.
For the State : Mrs. Anita Kumari Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY
CAV JUDGMENT
Date : 20-01-2026
Both the above stated appeals have been
Patna High Court CR. APP (SJ) No.1412 of 2025 dt.20-01-2026
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directed against the common judgment of conviction dated
06.03.2025 and order of sentence dated 11.03.2025 passed by
learned Additional District and Sessions Judge-IV, Barh (Patna)
in S.T. Case No. 423 of 2023, arising out of Mokama P.S. Case
No. 368 of 2022 whereby and whereunder appellant/ Bipin Rai
@ Bipin Ray in Cr. Appeal (SJ) No. 1412 of 2025 and appellant/
Manoj Rai in Cr. Appeal (SJ) No. 1524 of 2025 have been
convicted for the offences punishable under Sections 307, 448
read with 34 of the IPC and 27 of the Arms Act and they have
been sentenced to undergo R.I. for one year and fine of Rs.
1,000/- under Section 448 read with 34 of the IPC and in default
of payment of fine, they will further undergo one week simple
imprisonment. The appellants have further been sentenced to
undergo R.I. for five years and fine of Rs. 10,000/- under
Section 307 read with 34 of the IPC and in default of payment
of fine, they will further undergo simple imprisonment of six
months. The appellants have further been sentenced to undergo
R.I. for three years and a fine of Rs. 5,000/- under Section 27 of
the Arms Act and in default of payment of fine, they will further
undergo simple imprisonment of three months. All the sentences
have been directed to run concurrently. Therefore, both these
appeals are being disposed of by this common judgment.
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2. The prosecution case, as disclosed by
informant, Abhinash Kumar (PW-6), is that on 25.11.2022 at
about 07:20 PM, while he was sleeping in his house, 5-6
persons forcibly entered in the house, abused him, and opened
indiscriminate fire, discharging 3-4 rounds at him. It is further
alleged that while retreating, the assailants again fired, as a
result of which the informant sustained a gunshot injury on his
left arm. On his alarm, the miscreants fled. The informant
asserts that he has identified the appellants and others, being
well acquainted with them as residents of village Mekra. The
alleged motive for the occurrence is stated to be a dispute
relating to crop seeding and threats. The informant has further
alleged that the firing was carried out with intention to kill him.
3. On the basis of written report of the
informant/PW-6, Mokama P.S. Case No. 368 of 2022 dated
25.11.2022 was registered under Sections 448, 326, 307, 34 of
the IPC and Section 27 of the Arms Act. Routine investigation
followed. Statement of witnesses came to be recorded and on
the completion of investigation, charge sheet has been submitted
against the appellants under Sections 448, 326, 307/34 of the
IPC and 27 of the Arms Act whereas investigation continued in
respect of others. Thereafter, the learned trial court took
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cognizance against the appellants. The case was committed to
the court of sessions after following due procedure. The learned
trial court framed charges against the appellants under Sections
307/34, 326/34 and 448/34 of the IPC and 27 of the Arms Act.
Charges were read over and explained to the appellants to which
they pleaded not guilty and claimed to be tried.
4. In order to bring home guilt of accused
persons, prosecution has examined altogether seven witnesses.
PW-1/Chintu Kumar @ Karu, PW-2/ Pawan Devi, PW-3/ Ranju
Devi, PW-4/ Ghuran Rai @ Ghus Rai, PW-5/ Anita Devi, PW-6
Abhinash Kumar (informant) and PW-7/ Chandra Bhushan
Sinha (I.O.). Prosecution has relied upon following
documentary evidence on record:-
Ext. 1- Written report of informant.
Ext. 1/1-Endorsement of SHO, Mokama on
written report of informant.
Ext. 2 & 2/1- Discharge ticket of Avinash
Kumar from PMCH, Patna & signature of
doctor.
Ext. 3- Charge sheet No. 48/2023 dated
20.02.2023 of this case.
Ext. 4- Formal FIR of Mokama P.S. Case No.
368 of 2022.
Ext. 5- Injury report of Avinash Kumar
prepared by Dr. Rakesh Kumar.
Ext. 6- Certified copy of FIR of Mokama P.S.
Case No. 03 of 2019.
Ext. 7- Certified copy of Charge sheet No. 78/
2019 of Mokama P.S. Case No. 03/2019.
Ext. 8- Certified copy of charge framed in ST
No. 905/ 2019.
Ext. 9- Certified copy of FIR of Mokama P.S.
Case No. 181 of 2023.
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5. Defence has not produced any oral or
documentary evidence. However, defence of the appellants as
gathered from the line of cross examination of prosecution
witnesses as well as from the statement under Section 313 of the
Cr.P.C. is that of total denial.
6. After hearing the parties, the learned trial
court convicted the appellants and sentenced them as indicated
in the opening paragraph of the judgment.
7. Following submissions have been made on
behalf of the appellants:-
7.1 Learned counsel for the appellants submits
that there is no evidence of house trespass as the place of
occurrence is Chabutra which is outside the house of informant.
Hence, no offence under Section 448 of the IPC is made out
against the appellants. He further submits that for the purpose of
proving the charge in a case of firing, actus rea and mens rea are
required. There are several versions on the point of place of
occurrence, even the informant's statement is quite divergent on
the point of place of occurrence. Learned counsel for the
appellants submitted that as per initial version of informant
(PW-6) while he was sleeping in his house, he was fired upon.
On the said point, Investigating Officer has stated that
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occurrence of firing took place at Chabutra which is outside the
house. He further submits that PW-7/ I.O. has specifically stated
that no firing material or any incriminating article were seized
from the place of occurrence and in the light of aforesaid facts,
Section 27 of the Arms Act is not made out against the
appellants. The appellants are not assailant of the deceased.
Learned counsels further submitted that the doctor who treated
the informant has not been examined in the present case.
Learned counsel for the appellants has raised a pertinent
question regarding the evidentiary value of the injury report
where doctor has not been examined and injury report has been
exhibited. The counsel of the appellants has stated that defence
has raised a plea in the trial court during course of argument that
doctor has not been examined and the very injury report is
meaningless in the light of factum that injury report has not
been authenticated by the doctor, who is author of the injury
report. It is quite obvious that any person can produce injury
report and same can not be proved against accused person who
is alleged to have caused said injury. The counsel of the
appellants has stated that it is quite dangerous that in absence of
author of the injury report, any person can produce any injury
report and made allegation against intended accused persons to
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falsely implicate him. He further submits that apart from that
there are several contradictions and discrepancies in the
evidence of prosecution witnesses. Hence, in the light of
aforesaid facts and circumstances, the impugned judgment of
conviction and order of sentence are not sustainable in the eye
of law and same are fit to be set aside.
8. Mrs. Anita Kumari Singh, learned Additional
Public Prosecutor appearing for the State has submitted that as
per evidence of PW-1, PW-2 and PW-3 occurrence took place
within the house. Learned APP further submits that PW-3, who
is aunt of the informant, has stated that Chabutra is in between
the house of informant and her house. Learned APP further
submits that PW-4 and PW-5 also stated that occurrence took
place within the house of the informant. PW-6/informant is
injured witness and has stated that informant was in his house
and also stated that he has sustained one bullet injury on the left
arm and remaining firing passed through the window. PWs-1, 2,
3 and 4 have stated that all the accused persons were armed with
firearm and they have made firing and hence, Section 34 of IPC
is applicable against the appellants also. All the prosecution
witnesses have supported and corroborated the story of
prosecution. Learned APP further submits that place of
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occurrence has been well established by all the prosecution
witnesses, except the investigating officer. Learned APP further
submits that judgment of conviction and order of sentence
passed by the concerned court are not in any way derogation of
settled principle of law and hence, no interference is required.
9. The question which arises for consideration
is:-
"Whether offence under
Sections 307, 448 read with 34 of the IPC and 27 of
the Arms Act is made out in the light of given facts and
circumstances of the case or not ?"
10. 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.
11. It is necessary to evaluate, analyze and
screen out the evidences of witnesses adduced before the trial
court.
12. PW-6/ Abhinash Kumar is informant of the
case. He has stated that the occurrence took place on 25.11.2022
at 07:00 PM and at that time, he was sleeping at his house and
all of sudden 5-6 persons made intrusion in house, made three to
four rounds of firing upon informant. He has further stated that
Rahul Rai, appellant-Bipin Rai, appellant-Manoj Rai, Pampam
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Rai and Lolin Rai entered into house out of whom there was
pistol in the hand of Rahul and others were having rifle in their
hands. He has further stated that firing made by Rahul hit left
hand of informant/PW-6 as a result of which he fell down on the
ground. Thereafter, all the accused persons went away while
making firing and abusing. He has further stated that this
occurrence had been seen by informant's mother/ Pawan Devi,
informant's father/Ghuran Rai, informant's cousin/ Karu Kumar
@ Chintu and informant's aunt/ Ranju Devi and Anita Devi. At
para 2 he has stated that at the time of occurrence light of the
electricity was available in his house. He has also stated that
first of all information of said occurrence was given in village
Mekra by informant's father and informant was taken to
Government Hospital, Mokama for treatment. He has further
stated that he got the application written by his uncle/ Shankar
Rai and informant put signature upon the application and entire
application stands marked as Ext-1. Reason behind the
occurrence is that informant's aunt Ranju Devi sustained
gunshot injury by accused persons and informant was witness of
said case and informant was being threatened not to adduce
evidence in said case.
12.1 During cross examination, at para 8 PW-
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6/informant has stated that first of all, Rahul Kumar entered into
the house. He was sleeping with his eyes open. At para-10 PW-6
has stated that all the family members were present in the room
where he slept. Again he stated that no one from his family
member was present in his room. At para 10 he has also stated
that three to four rounds of firing was made upon him within
house, out of whom one firing hit between left elbow and wrist
of informant and other remaining firing went away through
window. At para 12, he has stated that after five to six minutes
of occurrence he came out of his room. At para 16 he has stated
that he had not pointed out to police that at the time of
occurrence light of electricity was available in his house.
12.2 From a perusal of the FIR, it appears
that PW-6/informant did not attribute the firing to any
specific accused and merely alleged that the appellants and
others collectively fired and were identified while fleeing;
however, while adducing evidence before the court he
materially improved the prosecution case by specifically
alleging that Rahul Rai fired the shot that caused injury.
Further, though in evidence he claimed that the occurrence
was witnessed by his parents, cousin and aunt, no such fact
finds mention in the initial version of prosecution story.
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Likewise, while informant later asserted that electricity was
available and a bulb was on at the time of occurrence
facilitating identification, this circumstance was not disclosed
in the FIR. Additionally, the motive stated during evidence-
relating to threats in connection with an earlier case in which
informant/PW-6 was a witness- is wholly inconsistent with the
earlier motive assigned in the prosecution narrative, namely
the dispute over sowing of seeds and threats. These omissions
and subsequent improvements constitute material
inconsistencies affecting the credibility of the prosecution
case.
13. PW-7/ Chandra Bhushan Sinha has stated
that on 25.11.2022 he was posted in Mokama Police Station as
Sub Inspector of Police. He took charge of investigation of
Mokama P.S. Case No. 368 of 2022. He identified the place of
occurrence. Place of occurrence is specified as Chabutra in
barren land in front of house of informant situated at village
Mekra where informant sustained firearm injury. PW-7 has
given following description of boundary of place of
occurrence:-
North-House of Ravindra Rai
South-Barren land of Mantu Rai.
East-House of Rahul Rai
West-House of Bhuran Rai
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13.1 During cross examination, PW-7/I.O. has
stated that place of occurrence is Chabutra, which is outside of
house of the informant. PW-7 has further stated that no firing
material was seized nearby the place of occurrence. PW-7 has
also stated that son of Pawan Devi (informant) was sat on
Chabutra and he was lying on the said Chabutra. He has further
stated that no blood was found in the house of informant when
question was asked. He has stated that Pawan Devi came
outside the house after hearing the sound of firing and Ranju
Devi stated to the police that she heard the sound of firing in the
evening at 7:20 PM and she heard regarding sound of firing
from the people and Ranju Devi stated that after raising alarm
people of nearby came there and accused persons ran away. No
witness has stated that informant/ Avinash Kumar sustained
firearm injury within house.
13.2 From perusal of evidence of PW-7/
investigating officer, it is clear that no firing material was seized
from the place of occurrence. Place of occurrence is Chabutra
which is outside house of informant. PW-7/I.O. has not pointed
out as to who has helped to identify the place of occurrence. He
did not point out the name of villagers. Place of occurrence is
Chabutra where informant had slept. No witness has stated that
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informant/ Avinash Kumar sustained firearm injury within
house. Primary treatment was not given in referral hospital. In
the initial version of prosecution story motive behind the
occurrence is highlighted but I.O./ PW-7 has not made any
investigation regarding the motive behind the occurrence. PW-7
has stated that re-statement of informant has been recorded on
16.12.2022 in Thana Parisar which reflects that investigation
was not fair. In this way, the role of I.O. is not fair and he has
not conducted the investigation in a fair manner.
14. PW-1/ Chintu Kumar @ Karu has stated that
occurrence took place on 25.11.2022 at about 07:20 PM and at
that time, he was in his house. He has stated that Rahul Rai,
appellant/Bipin Rai, appellant/Manoj Rai, Ram Lalin Rai and
Pampam Rai came and started abusing. He has further stated
that in the year 2019 accused persons had fired at his mother
for which a case was lodged and said case is still going on and
to put pressure to withdraw the said case the accused persons
were abusing. He further stated that accused persons were
abusing Abinash/informant and on refusal to withdraw the
earlier case, the accused persons resorted to firing. He further
stated that the accused persons entered the house and fired at
Abinash who was sleeping inside the house and the said firing
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hit below the left elbow. At para-3 of examination in chief PW-1
stated that 11 empty cartridges were handed over to Daroga.
14.1 During cross-examination, PW-1 at para 5
has given following description of the boundary of place of
occurrence:-
North : His own house
South : Barren land.
East: House of Rahul Rai
West: House of Upendra Rai.
14.2 At para 6 of cross examination, PW-1 has
stated that there is a chabutra at the place of occurrence situated
in the eastern side of the house. There is no temple at that place.
This is a public Chabutra. There is no regular sitting on the said
Chabutra. No one was sitting on the said Chabutra on the date of
occurrence. All the persons present there were his family
members. PW-1 at para 7 has clearly stated that no firing was
made at the place where he and his family members sat and
firing was made inside the house. At para 8 he has stated that all
the family members went home when firing started and when
they reached home, accused persons fled away while making
firing. PW-1 at para 10 has stated that earlier he sat on Chabutra
but again he stated that he was at place of occurrence.
14.3 From perusal of evidence of PW-1, it is
clear that his statement is quite contradictory as he himself
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stated that he was not at the place of occurrence when firing was
made and he and his family members viz. Ranju Devi/PW-3,
cousin brother Abinash/PW-6, Pawan Devi/ PW-2 and Ghuran
Rai/PW-4 sat at a place and when firing started they went home
and all the accused persons fled away. From perusal of
statement of PW-1, it is evident that none of the prosecution
witnesses is eye witness of the alleged firing as when PW-1 and
his family members, viz. Ranju Devi/PW-3, cousin brother
Abinash/PW-6, Pawan Devi/ PW-2 and Dhuran Rai/PW-4 sat,
no firing was made and when firing was made they went inside
the house and accused persons fled away while making firing.
Further, statement of PW-1 regarding the alleged handing over
11 empty cartridges to Daroga is quite divergent as I.O./PW-7
has categorically stated that no firing material was recovered at
the place of occurrence. Boundary of place of occurrence as
stated by PW-1 is quite inconsistent with the boundary of place
of occurrence as stated by PW-7/I.O.
15. PW-2/ Pawan Devi has stated that
occurrence took place eight months ago at about 07:20 PM and
at that time, she was in her house. She has further stated that
Rahul, appellant/Bipin, appellant/Manoj, Pampam, Ramnalin
came. Rahul was having pistol, Bipin was having rifle, Manoj
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was having pistol, Pampam was having rifle and Ramnalin was
having rifle. She has further stated that accused persons resorted
to firing upon which her son/ Abinash Kumar, who was near
Chabutra, went inside the house. Thereafter Rahul entered the
house and fired at her son which hit him on his left hand. She
has further stated that appellant/Bipin, appellant/Manoj,
Pampam and Ramnalin were outside the house. Thereafter
accused persons fled away.
15.1 During cross examination, at para 4 PW-2
has stated that at the time of occurrence she did not sit at
chabutra. At para 5 she has stated that she heard the sound of
firing from house and 5-6 round of firing took place outside the
house. At para 10 she has given following description of the
boundary of place of occurrence:-
East : House of Rahul
West : Her own house
North: House of Bano Rai
South: Field.
At para 16 PW-2 has stated that accused Bipin
is her agnate and she had dispute with Bipin on the issue of
erecting a pole on the land.
15.2 From perusal of evidence of PW-2, it is
evident that on the point of utilization of Chabutra, Pws 1 and 2
have divergent view. Further on the point of presence of
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appellants, PW-2 has divergent view as she stated that
appellants were outside the house with co-accused Pampam and
Ramnalin and Rahul caused firearm injury to the informant. The
boundary of place of occurrence as stated by the PW-2 is quite
inconsistent with the boundary of place of occurrence as stated
by PW-7/ informant. Further, on the point of place of
occurrence, the statement of Pws 1 and 2 are quite divergent as
PW-7/ I.O. has stated that place of occurrence is Chabutra but
neither PW-1 nor PW-2 has specifically pointed out that
Chabutra is place of occurrence. It is quite unbelievable that
when 5-6 rounds of firing took place outside the house, how
PW-2 can witness the persons who have fired 5-6 round of
firing at 07:20 PM in evening. Further source of light has also
not been pointed out by the PW-7/ I.O. The very claim of PW-2
as an eye witness of the occurrence is very shaky. The motive
behind the occurrence as pointed out by the informant in initial
version of prosecution story is totally different from the motive
pointed out by the PW-2 during course of adducing evidence
before the court. The statement of PW-2 is quite inconsistent
with regard to manner of occurrence as stated in the initial
version of prosecution story.
16. PW-3/ Ranju Devi has stated that
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occurrence took place eight months ago at about 07:20 PM and
at that time, she was in her house. She has stated that Rahul,
appellant/Bipin, appellant/Manoj, Pampam and Nalin came to
the house of informant and started abusing. She has further
stated that Rahul was having pistol, Bipin was having rifle,
Manoj was having pistol, Pampam was having pistol and Nalin
was having pistol and on forbidding to abuse, accused persons
resorted to firing upon the informant which hit him on the left
arm. At para 3 PW-3 has stated that appellant Bipin and co-
accused Rahul caused firearm injury to her four years prior to
the present occurrence and the said firing caused injury upon the
right leg of PW-3 and informant of the present case is witness of
the case filed by PW-3.
16.1 During cross examination, at para 9 PW-3
has stated that in her statement before the police she had stated
that at 07:20 PM, she was at her house and on hearing the sound
of firing when she came outside, she found the informant in
injured condition. At para 4 PW-3 has stated that partition was
made by local Sarpanch between appellant Bipin and informant
Abinash regarding ancestral property but appellant Bipin Rai
did not accept the partition done by Sarpanch. At para 8 PW-3
has stated that her house is adjacent to the house of informant.
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She has stated that at the place of occurrence there is a Chabutra
made of soil and people sat around the said Chabutra. PW-3 has
further stated that she heard 11 round of firing and after that she
went outside the house and she met the informant but she did
not made any query to Abinash regarding assailant. At para 11
PW-3 has stated that she met Anita Kumari/ PW-5, Pawan Devi/
PW-2 and Ghuran Rai/PW-4 and they have stated that appellant
Bipin, appellant/Manoj and co-accused Rahul caused firearm
injury and fled away. At para 14 she has given following
description of the boundary of place of occurrence:-
North : House of Bano Rai
South : Barren land.
East: House of Rahul
West: Her own house.
16.2 From the statement of PW-3, it is quite
evident that she has not seen the occurrence. She came outside
the house after hearing 11 round of firing and she has not made
query to the victim Abinash as to who has caused firing and
inflicted gun shot injury to the informant. In this way, PW-3 is
not eye witness of the occurrence and her statement regarding
manner of occurrence is quite inconsistent with the initial
version of prosecution story. She has stated that other family
members i.e, Anita Kumari/ PW-5, Pawan Devi/ PW-2 and
Ghuran Rai/PW-4 told her that appellants and co-accused Rahul
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ran away after causing firearm injury to the informant. Further,
her statement regarding boundary of place of occurrence is quite
inconsistent with the boundary of place of occurrence as stated
by the I.O./PW-7. Her statement regarding specific place of
occurrence is quite inconsistent with other version of
prosecution witnesses. In this way, her statement is neither
convincing nor trustworthy in the light of aforesaid facts and
circumstances. PW-3 has specifically stated that informant was
witness of a case in which she sustained injury and appellants
and other are assailants of the case filed by her and she has
reason to adduce the evidence against the appellants and others.
17. PW-4 / Ghuran Rai @ Ghus Rai has stated
that occurrence took place eight months ago at about 07:00 PM
and at that time, he was on the verandah of his house. He has
stated that Rahul, Pampam, appellant/Bipin, appellant/Manoj
and Nalin having armed with firearms came, abused and fired at
his son Abinash. He has further stated that Rahul fired upon the
Abinash which hit him on the left hand. PW-4 has pointed out
that the reason behind the occurrence is not to adduce evidence
in Ranju Devi case as well as compromise took place in the said
case. At para 3 he has stated that on the date of occurrence
electric light was available on the place of occurrence.
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17.1 During cross examination, at para 5 PW-4
has stated that there was no Chabutra of soil in front of his
house. At para 7 he has stated that he had heard the sound of
firing in verandah. Having heard the sound of firing he
proceeded from verandah to the room of his son (informant/PW-
6) where his son was found in senseless condition. At para 8
PW-4 has stated that no person from nearby locality came to the
place of occurrence after arrival of police. Only family members
were present there. At para 11 PW-4 has given following
description of the boundary of place of occurrence:-
North : House of Mantun Rai
South : His barren land.
East: House of Rahul Rai
West: House of Upendra Rai.
17.2 At para 16 PW-4 has stated that he knows
Nibha Devi, who is the wife of co-accused Rahul, who has filed
the case against his son and there was a dispute on account of
erection of pole in land. At para 18 he has stated that there was
also dispute regarding loot of wheat between both parties.
17.3 From the evidence of PW-4, it is crystal
clear that his views regarding place of occurrence is quite
divergent as there was no Chabutra in front of his house and his
statement regarding the boundary of place of occurrence is also
quite inconsistent with the I.O./PW7. PW-4 has stated that there
Patna High Court CR. APP (SJ) No.1412 of 2025 dt.20-01-2026
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was dispute between the accused persons and informant’s side
as wife of co-accused Rahul has filed case against informant
regarding erection of pole on the land and there was also dispute
regarding loot of wheat between the parties. Further the manner
of occurrence as stated by PW-4 is totally inconsistent with the
initial version of prosecution story and during cross examination
he has stated that he was in verandah and after hearing the
sound of firing, he proceeded to the room of his son and he
found his son in unconscious condition. In this way, PW-4 is not
eye witness of the occurrence as he was not available when the
firing hit his son/informant. PW-4 has reason to adduce
evidence against the accused persons and his statement is
neither convincing nor carrying any weightage in the light of
aforesaid facts and circumstances.
18. PW-5/ Anita Devi has stated that occurrence
took place near about nine months ago at about 07:30 PM and at
that time, she was cooking meal in her house. She has stated that
Rahul, appellant/Bipin, Pampam, appellant/Manoj and Lalin Rai
entered the house of Abinash/informant making firing. She has
stated that Abinash was taking food on the bed and Rahul made
fire upon Abinash which hit him on the left hand. PW-5 has
pointed out that the reason behind the occurrence is that
Patna High Court CR. APP (SJ) No.1412 of 2025 dt.20-01-2026
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appellant/Bipin fired bullet upon Ranju Devi three years ago
and to compromise the said case, pressure was being made.
18.1 During cross examination, PW-5 at para 4
has stated that appellants and others after raising alarm and
abusing came and then she reached the house of informant and
saw that accused persons shot the informant. She has further
stated that she found two women at the house of informant, one
is PW-2/Pawan Devi and another is her daughter-in-law. She has
stated at para 5 that in front of house of informant there was
Chabutra of soil but she had not pointed out regarding said
Chabutra to police. At para 6 she has deposed that she had stated
before the police that she had seen the firing. She had also stated
before the police that she was cooking meal and on hearing
hulla as well as sound of firing she went to the house of
Abinash/informant where she saw Abinash in injured condition.
18.2 From perusal of evidence of PW-5, manner
of occurrence is totally divergent with initial version of
prosecution story as PW-5 has stated that while the victim was
taking food on bed, appellants along with other accused persons
forcibly entered the house while making firing and Rahul made
firing upon Abinash which hit him on the left hand. From
perusal of evidence of PW-5 it is crystal clear that only two
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women are present when she visited the house of the informant
but from perusal of evidence of Pws 1, 2, 3 and 4, all are
claiming to be eye witness of the occurrence which is quite
inconsistent with the evidence of PW-5 that except two women
i.e. PW-2 and her daughter-in-law, no one was present. In this
way, other male prosecution witnesses are not eye witness of the
occurrence though they are claiming to be the eye witness of the
occurrence. Further PW-5 has also not pointed out the place of
occurrence which is Chabutra to the police though PW-7/I.O.
has clearly stated that Chabutra which is outside the house of
the informant is the place of occurrence. In this way, her
statement regarding manner of occurrence as well as place of
occurrence is quite inconsistent with the initial version of
prosecution story as well as the evidence of IO/PW-7. Her
evidence is neither trustworthy nor convincing in the light of
aforesaid facts and circumstances.
19. In the present case, the author of the injury
report (doctor) has not been examined. Pragmatically and
prudently, the doctor who prepared the injury report was
required to enter the witness box during course of adducing
evidence to prove the injuries of injured person. In absence of
examination of doctor, said injury report is merely a formality
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and nothing else.
20. In the present case, the informant who has
initiated the story of prosecution by setting the fact into motion
and in initial version of prosecution story the informant did not
attribute the firing to any specific accused and merely alleged
that the appellants and others collectively fired and were
identified while fleeing but during course of adducing evidence
before the court he materially improved the prosecution case by
specifically alleging that co-accused Rahul Rai fired the shot
which hit the informant causing injury to him. Further though in
the evidence he claimed that occurrence was witnessed by his
mother/ Pawan Devi, his father/Ghuran Rai, his cousin/ Karu
Kumar @ Chintu and his aunt/ Ranju Devi and Anita Devi, no
such fact finds mention in initial version of prosecution story.
Further PW-5 has stated that when she went to the house of
informant she found two ladies, one is Pawan Devi/ PW-2 and
another is her daughter-in-law but no daughter-in-law has
adduced evidence before the trial court. By virtue of evidence of
PW-5, it is crystal clear that only one lady was present with the
informant at the time of occurrence and other witnesses who
have stated that they were present at the place of occurrence
with the informant is quite divergent. PW-7/I.O. has clearly
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stated that none of the witnesses has stated that occurrence took
place within the house. In this way, the statement of other
prosecution witnesses who have stated that occurrence took
place inside the house is quite divergent with the statement of
I.O. and on the point of place of occurrence, statement of other
Pws are quite inconsistent with the I.O./PW-7. Further the
manner of occurrence as stated by the informant is quite
divergent with the I.O. as informant has stated that he was in his
house when firing was made but I.O./PW-7 has stated that
informant was lying on Chabutra where firing was made.
21. Apart from that, counsel of the appellants
has raised a pertinent question that in absence of author of the
injury report how the injury can be proved. Doctor is the most
competent person to authenticate the injury report but in the
present case, doctor has not been examined. From the evidence
of prosecution witnesses, it is crystal clear that there was a
dispute between the parties and it is quite obvious that
prosecution has prepared a plan to frame false allegation in
order to suit the prosecution case and how the informant
improved his earlier version by stating that Rahul made firing
which hit on the left hand of informant and same is absent from
the initial version of prosecution story. Further, motive behind
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the occurrence has already been alleged in the initial version of
prosecution story and other prosecution witnesses have stated
that there was dispute between both the parties and hence, false
implication of the appellants and others cannot be denied in the
present case. It is cardinal principle of criminal law that
prosecution has to prove the case beyond reasonable doubt.
22. Keeping in view all the infirmities and
discrepancies, I find the judgment of conviction and order of
sentence passed by the concerned court are not justified and
legal and same are fit to be set aside.
23. 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 both the appeals stand allowed. The
appellants are in custody, they are directed to be released
forthwith, if not warranted in any other case.
24. The interlocutory application, if any, also
stands disposed of.
25. Let a copy of this judgment be transmitted
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to the Superintendent of the concerned jail for compliance and
for record.
26. The records of this case be also returned to
the concerned trial court forthwith.
(Alok Kumar Pandey, J)
shahzad/-
AFR/NAFR AFR
CAV DATE 01.12.2025
Uploading Date 20.01.2026
Transmission Date 20.01.2026
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