Patna High Court
Bipin Yadav and Ors.versusThe State Of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- PURNENDU SINGH
Holding
The appeal is allowed and the conviction and sentence under Sections 307, 34 IPC and Section 27 Arms Act are set aside.
Summary
The appellants Bipin Yadav and Umesh Yadav were convicted by the Additional Sessions Judge, Bhagalpur, for attempt to murder (IPC s.307) in conjunction with common intention (IPC s.34) and, in Umesh's case, for unlawful possession of a firearm (Arms Act s.27). They appealed under CrPC s.374(2), contending that the prosecution evidence was contradictory, lacked eye‑witness testimony against Bipin, and that the medical and forensic reports did not substantiate a firearm injury or the requisite intent. The State relied on the testimony of PW‑1 (Naresh Yadav) and other witnesses, asserting that the accused fired at the informant, causing injury. The High Court examined the legal requirements for an attempt under s.307 IPC, citing Supreme Court precedents, and held that the prosecution failed to prove the specific intent and overt act necessary for conviction, especially against appellant No.1 and that the evidence against appellant No.3 was unreliable. Consequently, the Court allowed the appeal, set aside the conviction and sentence, and acquitted both appellants, ordering the refund of any fine paid.
Issues considered
- Whether the prosecution proved beyond reasonable doubt the elements of attempt to murder under Section 307 IPC against the appellants.
- Whether the evidence satisfied the requirement of common intention under Section 34 IPC.
- Whether the evidence was sufficient to sustain a conviction under Section 27 of the Arms Act.
- Whether the trial court erred in its appreciation of the evidentiary material.
Legislation cited
- Arms Act — s. 27
- Code of Criminal Procedure, 1973 — s. 374
- Indian Penal Code — s. 307, 324, 34, 504
Subjects
- attempt to murder
- Section 307 IPC
- common intention
- Arms Act
- evidentiary insufficiency
- acquittal
- criminal appeal
- Bihar
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.227 of 2014
Arising Out of PS. Case No.-27 Year-1996 Thana- SULTANGANJ District- Bhagalpur
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1. Bipin Yadav Son of Shiv Shahi Yadav
2. Shiv Shahi Yadav Son of Late Mohan Yadav
3. Umesh Yadav Son of Shiv Shahi Yadav
All resident of Village Mirhatti, P.S. Sultanganj, District Bhagalpur
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Ms.Pravina Kumari, Advocate
For the Respondent/s : Mr. Abhay Kumar, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL JUDGMENT
Date : 10-03-2026
Heard Ms. Pravina Kumari, learned counsel
appearing on behalf of the petitioner and Mr. Abhay Kumar,
learned APP for the State.
2. The present appeal has been filed under Section
374 (2) of the Code of Criminal Procedure challenging the
judgment of conviction dated 11.03.2014 and order of sentence
dated 14.03.2014 passed by the Adhoc Additional District and
Sessions Judge, Bhagalpur in S.T. No.1403/04, arising out of
Sultanganj P.S. Case No. 27/1996, whereby and whereunder the
appellants have been convicted for the offence punishable
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under Section 307 and 34 of the Indian Penal Code and have
been sentenced to undergo Rigorous Imprisonment for three
years along with a fine of Rs.2,000/- each and in default of
payment of fine to further undergo simple Imprisonment for six
months. Further appellant no.3 has been convicted for the
offence punishable under Section 27 of the Arms Act and has
been sentenced to undergo rigorous imprisonment for two years
and a fine of Rs.1,000/- and in default of payment of fine to
further undergo imprisonment for three months.
3. During the pendency of this appeal, the appellant
no.2 namely, Shiv Shahi Yadav had died and as such the
present appeal stood abated as against him and therefore,
now, this appeal is restricted only with respect to appellants
no.1 and 3.
4. Being aggrieved by and dissatisfied with the
aforesaid judgment of conviction and order of sentence, the
appellants have preferred the present appeal before this Court.
The appellants have assailed the impugned judgment primarily
on the ground that the learned trial court failed to appreciate the
evidence available on record in its proper perspective and has
wrongly recorded the conviction of the appellants despite the
existence of serious contradictions and deficiencies in the
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prosecution case.
5. Prosecution case in brief is that on 31.1.1996, at
about 5:30 a.m., while the informant after tying his cattle to the
manger and was sitting near the bonfire, the accused persons,
namely, Umesh Yadav (appellant no.3), Bipin Yadav (appellant
no.1), and Shivshahi Yadav (deceased appellant no.2) came and
complained that your elder brother/Surendra Yadav has uprooted
their crops and thereafter the accused persons started abusing
the informant and his own brother Sundar Yadav. When the
informant stopped them to to abuse, then Shivshahi Yadav gave
order for assaulting him, upon which Umesh Yadav (appellant
no.3) fired upon the informant. The bullet hit the right paw of
the informant. On hearing the noise, Naresh Kumar Yadav,
Adhori Yadav, Tuntun Yadav and other people from the vicinity
came and saw the incident. Seeing the people, the accused run
away from the place of occurrence. Regarding the above
incident, the fardebyan of the informant was recorded on
31.01.1996 at 07:00 a.m. at Referral Hospital, Sultanganj.
6. On the basis of the statement of the informant, the
F.I.R being Sultanganj P.S. Case No. 27/1996 was registered for
the offences under sections 324, 307, 504/34 of the I.P.C and
under section 27 of the Arms Act. After institution of the FIR,
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the police proceeded with the investigation and after completion
of investigation, charge-sheet was submitted. Thereafter, the
trial court took cognizance against the appellants and the case
was committed to the Court of Sessions for trial.
ARGUMENT ON BEHALF OF THE APPELLANTS
7. Learned counsel appearing on behalf of the
appellants submitted that so far as appellant no.1 is concerned,
from the allegation as alleged in the FIR, as well as, material
which has surfaced during the course of trial, it appears that
there is no specific allegation against appellant no.1 rather the
main allegation is against appellant no.3, who is alleged to have
fired upon the informant/PW4, who sustained firearm injury.
Learned counsel placing the evidence of the PW 4/the
informant, who is also the victim and he has alleged that he has
sustained injury, in support of her argument, has referred to the
evidence of PW/5 (investigating officer) to contend that the
investigating officer has not prepared any seizure list on the spot
and in his examination, he has admitted that he has not found
any bloodstain from the place of occurrence, at the same time,
he has denied that he has collected any empty cartridges or
pellets to corroborate the prosecution story. Learned counsel
further submitted that there is no eye-witness, which falsifies the
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entire prosecution story. Even considering the version of PW 4,
who is the informant and has sustained injury that he is the one
who has seen the entire occurrence with his own eyes is also
falsified on the ground that Naresh Yadav / PW 1 had come to
the place of occurrence after he had heard the noise of firearm,
while his own brother, Sundar Yadav, who was sitting along
with the informant near the bonfire had not been examined by
the trial court, which creates doubt. Learned counsel submitted
that no witnesses have given any information regarding any
overt act of the appellant no.1, against whom, there is general
and omnibus allegation on the basis of hearsay witnesses. Even
the informant/PW4 has not alleged anything against him in his
cross-examination. Learned counsel informs that the appellants
have remained in custody for 18 months and conviction is for
three years and in absence of any evidence, the appellants
deserve to be acquitted. In such circumstances, it was argued
that the prosecution failed to prove the charges beyond
reasonable doubt and the trial court has miserably failed to
appreciate the evidence, leading to failure of justice and
therefore the conviction of the appellants under Section 307/34
of the Indian Penal Code and Section 27 of the Arms Act is
liable to be set aside.
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ARGUMENT ON BEHALF OF THE STATE
8. Per contra, Mr. Abhay Kumar, learned APP appearing
on behalf of the State submitted that there is ample evidence of
the eye-witnesses, who have seen the occurrence. Naresh
Yadav/PW1 has supported the prosecution story. He is the one
who has seen the entire incidence with his own eyes and it is not
a case that the trial court has not appreciated the evidence of
Naresh Yadav/PW1, who is the eye-witnesses. In these
backgrounds, learned counsel submitted that the trial court has
well appreciated all the evidences and the materials on record
and has also taken into consideration the Ext.2/1, the medical
report, which was prepared by the medical officer, who had
attended the PW 4 and in his medical examination report, has
found several charred injury and who later referred him to be
treated at Jawaharlal Nehru Chiktisa Mahavidaylya, Bhagalpur,
where he remained under treatment for one month after the
removal of bullet. The assault as per the PW 1 and PW 4 and
other witnesses goes to prove beyond reasonable doubt that the
appellants with an intention to kill the PW 4 had fired upon him
in a planned manner.
ANALYSIS AND CONCLUSION
9. Heard the parties.
10. I have perused the lower court records and
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proceedings and also taken note of the arguments canvassed by
learned counsel appearing on behalf of the parties.
11. The learned trial court, on the basis of materials as
collected during the course of investigation, passed the
Judgment of conviction dated 11.03.2014 and order of sentence
dated 14.03.2014 for the offences under Section 307/34 of the
IPC and Section 27 of the Arms Act.
12. During the trial, the prosecution has examined
altogether seven witnesses, namely:
(i) (P.W.-1),- Naresh Yadav
(ii) (P.W.-2),- Aghori Yadav
(iii) (P.W.-3),- Sakaldeo Yadav
(iv) (P.W.-4/ ,- Upendra Yadav/informant
(v) (P.W.-5),- Mundrika Singh/investigating officer
(vi) (P.W.-6),- Dr. Ajay Kumar Singh
vii) (P.W.-7).- Harendra Prasad Das/formal witness
13. The prosecution has also relied upon following
document exhibited during the course of trial:-
(i) Fardebyan (Exhibit-1),
(ii) injury report (Exhibit-2),
(iii) medical report (Exhibit-2/1),
14. On the basis of materials surfaced during the trial,
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the appellants/accused was examined under Section 313 of the
Cr.PC by putting incriminating circumstances/evidences
surfaced against them, which they denied and shows their
complete innocence.
15. It would be apposite to discuss the
oral/documentary evidences as available on record to re-
appreciate the evidences for just and proper disposal of the
present appeal.
16. It would be appropriate to reproduce the provision
of Section 307 of IPC for the sake of convenience and better
understanding of the facts, which is as under:-
“307. Attempt to murder.—Whoever does
any act with such intention or knowledge, and under
such circumstances that, if he by that act caused
death, he would be guilty of murder, shall be
punished with imprisonment of either description for
a term which may extend to ten years, and shall also
be liable to fine; and if hurt is caused to any person
by such act, the offender shall be liable either to
[imprisonment for life], or to such punishment as is
hereinbefore mentioned.
Attempts by life-convicts.—[When any
person offending under this section is under
sentence of [imprisonment for life], he may, if hurt
is caused, be punished with death].”
17. An attempt to commit murder must be clearly
distinguished from a mere intention to commit the offence or
from acts that amount only to preparation for its commission.
The law recognizes that the existence of a guilty intention alone
is not sufficient to constitute an attempt. There must be
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something more than planning or arranging the means to
commit the crime. Therefore, in order to secure a conviction
under Section 307 of the Indian Penal Code, the prosecution
must prove the presence of a definite intention or knowledge to
cause death, accompanied by some overt act that directly moves
towards the execution of that intention. In other words, the
accused must not only possess the intention to commit murder
but must also perform an act that clearly demonstrates the
commencement of the offence.
18. Law in this regard is well settled by the Apex Court
in case of Sivamani v. State, reported in, 2023 SCC OnLine
SC 1581, wherein in paragraph no. 9, the court held as under:
“ 9. In State of Madhya Pradesh v.
Saleem, (2005) 5 SCC 554, the Court
held that to sustain a conviction under
Section 307, IPC, it was not necessary
that a bodily injury capable of
resulting in death should have been
inflicted. As such, non-conviction
under Section 307, IPC on the premise
only that simple injury was inflicted
does not follow as a matter of course.
In the same judgment, it was pointed
out that ‘…The court has to see
whether the act, irrespective of its
result, was done with the intention or
knowledge and under circumstances
mentioned in the section.’ The position
that because a fatal injury was not
sustained alone does not dislodge
Section 307, IPC conviction has been
reiterated in Jage Ram v. State of
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Haryana, (2015) 11 SCC 366 and
State of Madhya Pradesh v. Kanha,
(2019) 3 SCC 605. Yet, in Jage Ram
(supra) and Kanha (supra), it was
observed that while grievous or life-
threatening injury was not necessary
to maintain a conviction under Section
307, IPC, ‘The intention of the
accused can be ascertained from the
actual injury, if any, as well as from
surrounding circumstances. Among
other things, the nature of the weapon
used and the severity of the blows
inflicted can be considered to infer
intent.”
19. Having heard the rival submissions made on
behalf of the parties and considering the evidence on record, it
appears that the prosecution has miserably failed to support any
evidence collected against the appellant no.1.
20. So far as the appellant no.3 is concerned, against
whom there is allegation that he had fired upon the
informant/PW4 in presence of his own brother/Sundar Yadav,
while they were sitting near the bonfire, the said Sundar Yadav
has not been examined. Prosecution has not been able to prove
that appellant no. 3, acting together with appellant nos. 1 and 2
(now deceased), had the intention to commit the murder of
PW4. Furthermore, the allegation that he had fired upon PW4
with the intention of causing his death, thereby inflicting a
firearm injury, has not been supported by reliable evidence on
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record. The prosecution evidence does not satisfactorily
demonstrate that any such act was carried out with the requisite
intention. Additionally, the medical evidence does not
corroborate the prosecution’s version. The opinion of the doctor
fails to support the claim that the injury sustained by PW4 was
caused by firearm discharge in the manner alleged. In the
absence of convincing ocular evidence and supportive medical
testimony, the prosecution’s allegation that the accused
attempted to murder PW4 remains unsubstantiated. The injury
caused by the firearm is also not established on the basis of the
medical evidence and at the same time, the investigating officer,
who has been examined as PW 5, has also not found any
bloodstain and question of seizing any firearm from the place
of occurrence has been denied by him, which falsifies the entire
prosecution story.
21. Accordingly, the present appeal is allowed.
22. The impugned judgment of conviction dated
11.03.2014 and order of sentence dated 14.03.2014 passed by
the Adhoc Additional District and Sessions Judge, Bhagalpur in
S.T. No.1403/04, arising out of Sultanganj P.S. Case No.
27/1996 is hereby set aside. Consequently, the above-named
appellants Bipin Yadav (appellant no.1) and Umesh Yadav
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(appellant no.3) are acquitted from all the charges levelled
against them. Since the aforesaid appellants are on bail, they are
discharged from the liability of their bail bond. The fine
deposited by the appellants, if any, shall be refunded to them.
(Purnendu Singh, J)
Sanjay/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 11.03.2026
Transmission Date 11.03.2026
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