Patna High Court
Kanhaiya YadavversusThe State Of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- SHAILENDRA SINGH
Holding
The prosecution failed to prove the offences under Section 323 IPC and Section 27 Arms Act beyond reasonable doubt, and the conviction is set aside.
Summary
The appellant Kanhaiya Yadav appealed against his conviction under Section 323 of the IPC and Section 27 of the Arms Act for allegedly firing a pistol at the informant and his brother. The trial court had sentenced him to one year imprisonment for the IPC offence and three years with a fine for the Arms Act offence, both to run concurrently. On appeal, the High Court examined the prosecution evidence, noting contradictions in witness testimonies, the absence of the alleged country‑made pistol, and the lack of a ballistic expert opinion to establish the firearm’s operability. The medical expert’s report did not conclusively link the injuries to gun‑shot splinters, and the investigating officer’s statements did not confirm recovery of the pistol. The Court held that the prosecution failed to prove the offences beyond reasonable doubt and set aside the conviction and sentence, allowing the appeal.
Issues considered
- Whether the prosecution proved the elements of Section 323 IPC (voluntarily causing hurt) beyond reasonable doubt.
- Whether the prosecution established that the accused possessed a functional firearm in contravention of Section 27 of the Arms Act.
- Whether the contradictions in witness testimonies and lack of forensic (ballistic) evidence undermine the prosecution case.
Legislation cited
- Arms Act — s. 25(1B)(a), 26, 27
- Indian Penal Code — s. 307, 323, 34, 341, 504
Subjects
- criminal law
- assault
- hurt
- Arms Act
- firearm
- evidence
- conviction overturned
- appeal
- ballistic expert
- injury
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.366 of 2014
Arising Out of PS. Case No.-228 Year-2005 Thana- SURYAGARHA District- Lakhisarai
======================================================
Kanhaiya Yadav, Son of Damodar Yadav, Resident of village- Khemtarni,
Asthan, P.S.- Surajgarha, District- Lakhisarai
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant : Mr. Sanjeev Kumar, Adv.
Mr. Ritesh Kumar Narain Singh, Adv.
For the State : Mr. Bipin Kumar, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE SHAILENDRA SINGH
ORAL JUDGMENT
Date : 04-02-2026
The instant appeal has been preferred by the
appellant, Kanhaiya Yadav, against the judgment of conviction
dated 05.07.2014 and the order of sentence dated 09.07.2014
passed by the court of the learned Ad hoc Additional District &
Sessions Judge-V, Lakhisarai, in Sessions Trial No. 27A of
2006, whereby and whereunder the appellant has been convicted
for the offences punishable under Section 323 of the Indian
Penal Code (in short, “IPC”) and Section 27 of the Arms Act.
The appellant has been sentenced to undergo simple
imprisonment for one year for the offence punishable under
Section 323 of the IPC and to undergo imprisonment for three
years with a fine of Rs. 500/- for the offence punishable under
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Section 27 of the Arms Act. In default of payment of fine, he
has been directed to undergo one month’s imprisonment
additionally. Both the sentences of imprisonment have been
directed to run concurrently by the trial court.
Prosecution Story:
2. The substance of the prosecution story, as
appearing from the FIR, is as follows:
As per the informant, on 14.08.2005, in the evening
at about 4:00 PM, he and his brother, Bale Yadav, were sitting
and interacting with each other at the door of their house. At that
time, their villagers, namely Kanhaiya Yadav (the appellant) and
co-accused Sahendra Yadav, came there and started abusing him
and his brother, Bale Yadav. In the course of abusing, they took
out a pistol and started firing. In the said firing, his brother Bale
Yadav sustained injuries on account of splinters scratching his
body, touching his right hand and going towards his shoulder,
resulting in his falling down on the ground.
As per the informant, after the firing, he started screaming
and tried to run away, but the appellant, Kanhaiya Yadav, chased
him and fired at him as well. Thereafter, upon hearing the
commotion and hulla, several villagers gathered, chased both
the accused, and managed to catch hold of them after
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surrounding them. From the hand of the appellant, one country-
made pistol was recovered, and from the pocket of his pant, one
unused bullet and one shell of a used bullet were recovered after
he was apprehended. From the apprehended co-accused,
Sahendra Yadav, two bullets were recovered from the pocket of
his shirt.
As per the informant, after apprehending both the
accused, when the villagers were about to proceed to the police
station, the police arrived at the place of occurrence in a jeep.
Thereafter, both the accused were handed over to the police
along with the recovered firearms and a charger, which was also
recovered from the accused. As per the informant, his brother,
Bale Yadav, was taken to the hospital by the villagers for
medical treatment. During the course of apprehending the
accused persons, the villagers assaulted them, owing to which
they sustained injuries.
3. In the FIR, the informant alleged that the
appellant and his companion, Sahendra Yadav, fired at him and
his brother with the intention to kill them, but somehow they
succeeded in saving their lives by sheer luck. The reason behind
the occurrence was a monetary transaction between the
appellant and one Pankaj Yadav, son of Bale Yadav, which had
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taken place prior to the alleged occurrence. Owing to a dispute
arising out of the said money transaction, the accused had
earlier attacked Pankaj Yadav.
4. The informant, Uma Shanker Yadav (PW-4),
recorded his fardbeyan before the Sub-Inspector of Surajgarha
Police Station on the same day of the alleged occurrence at
about 17:30 hours near the house of one Dewan Yadav in his
village, describing the above-mentioned prosecution story. On
the basis thereof, the formal FIR bearing Surajgarha P.S. Case
No. 228 of 2005 was registered for the offences under Sections
341, 504, and 307 read with Section 34 of the IPC, as well as
under Sections 25(1B)(a), 26, and 27 of the Arms Act, which set
the criminal law in motion, and the investigation was taken up
by the Investigating Officer.
5. It is important to mention here that at the time of
recording the fardbeyan (Ext-1) of the informant, a production-
cum-seizure memo was also prepared, which forms part of the
fardbeyan. After completion of the investigation, the appellant
and co-accused Sahendra Yadav were charge-sheeted for the
same offences as mentioned in the FIR. After taking cognizance
of the alleged offences, the learned Magistrate, finding the case
to be triable by the Court of Sessions, committed the same to the
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Sessions Court for trial.
6. The appellant and co-accused Sahendra Yadav
were charged for the offences under Sections 341, 504, and 307
read with Section 34 of the IPC, and also for the offences under
Sections 25(1B)(a), 26, and 27 of the Arms Act. The charges
were read over and explained in Hindi to the appellant and co-
accused Sahendra Yadav, to which they pleaded not guilty and
claimed to be tried. It is important to mention that after the
framing of charges, the trial of the co-accused Sahendra Yadav
was separated and the appellant, Kanhaiya Yadav, faced trial
alone.
7. During the trial, the prosecution examined
altogether seven witnesses, who are as under :
PW-1 Bale Yadav An injured
PW-2 Chandan Kumar Brother of the informant and claimed
himself to be an eyewitness of the
occurrence
PW-3 Bahadur Yadav Brother of the informant and claimed
himself to be an eyewitness of the
occurrence
PW-4 Uma Shanker Yadav The informant
PW-5 Pankaj Kumar Son of the injured Bale Yadav
PW-6 Arvind Kumar Singh The investigating Officer
PW-7 Dr. Janardan Prasad The medical expert who examined the
injured Bale Yadav and the accused.
8. In documentary evidence, the prosecution proved
and exhibited the following documents, which are as under :-
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Ext-1 Fardbeyan of the informant
Ext-1/1 Production-cum-Seizure list
Ext-2 The signature of Pankaj Kumar (PW-5) on the seizure list
Ext-3 The injury report of Bale Yadav
Ext-3/A The injury report of the appellant Kanhaiya Yadav
Ext-3/B The injury report of co-accused Sahendra Yadav
9. After completion of the prosecution evidence, the
statement of the appellant was recorded, giving him an
opportunity to explain all the material circumstances appearing
against him from the prosecution evidence, which were denied
by him. While recording his statement, the appellant claimed
himself to be innocent; however, he did not take any specific
defence in his statement.
10. In defence, the appellant produced and exhibited
the certified copy of the judgment pertaining to the trial of co-
accused Sahendra Yadav, in Sessions Case No. 27 of 2006,
which resulted in his acquittal.
Submissions made by the appellant’s counsel:
11. Mr. Sanjeev Kumar, learned counsel appearing
for the appellant, has argued that on the same set of evidence,
the co-accused, Sahendra Yadav, whose case was separated from
that of the appellant after framing of charge and who faced trial
separately, was acquitted by the trial court presided over by a
different Judicial Officer; however, on the same set of evidence,
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the appellant was convicted. The allegation regarding causing
firearm injury to Bale Yadav, brother of the informant, does not
get corroboration from his injury report, as the injury, which
was found to be simple in nature, was opined by the medical
expert (PW-7) as having been caused by a hard and blunt
substance. On his body, multiple rashes were found by the
medical expert, but it was not opined by the doctor that the same
were the result of scratching or splintering of a bullet.
11.1. From the prosecution evidence, it is evident
that there was enmity between the prosecution party and the
appellant, who are agnates, and the same was the main reason
for falsely implicating the appellant in the alleged occurrence.
Learned counsel further submits that, as per the prosecution
case, the appellant and co-accused Sahendra Yadav were
apprehended by villagers of the prosecution party, and from
their possession, one country-made pistol along with used and
unused bullets were recovered; however, to prove this fact, none
of the said villagers were produced and examined by the
prosecution, and for their non-production, there is no convincing
explanation.
11.2. There are serious contradictions among the
testimonies of the prosecution witnesses, particularly with
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regard to the consequences of the alleged firearm injury said to
have been caused to Bale Yadav, as one witness stated that there
was no bleeding from the body of Bale Yadav, whereas another
stated that there was bleeding from the wounds.
11.3. The alleged firearms, namely the country-made
pistol and the used and unused bullets, were not recovered by
the police; rather, as per the prosecution case, the same were
produced by private persons having an interest in the
prosecution party. However, according to the informant, several
villagers were present at the time of recovery of the said
weapons, but none of them was produced and examined to
substantiate the alleged recovery.
11.4. Lastly, it is submitted that for attracting the
offence under Section 27 of the Arms Act, the prosecution failed
to prove that the recovered country-made pistol was in working
condition, as there was no opinion of a ballistic expert in this
regard, and further, the seized firearms were not produced
before the trial court.
Submissions made on behalf of the State:
12. On the other hand, Mr. Bipin Kumar, learned
Additional Public Prosecutor (APP) appearing for the State,
submits that it is an admitted position that there was enmity
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between the prosecution party and the appellant, and the same
was the motive for the appellant and co-accused Sahendra
Yadav to make a murderous attempt on the informant and his
brother. Though the seized firearms were not produced before
the trial court, the seizure thereof was duly proved by the
prosecution witnesses. Learned APP further submits that the
multiple rashes found on the body of Bale Yadav might be the
result of firing by use of a country-made pistol, as per the
prosecution story, wherein only splinters passed by scratching
the body of the informant’s brother.
12.1. The FIR, in the form of the fardbeyan of the
informant, was registered immediately, and the appellant, who
had been caught hold of by the villagers and the prosecution
party, was also handed over to the police immediately. The
appellant’s injury report, which was proved by PW-7, also
supports the prosecution story, as according to the informant, the
appellant and co-accused Sahendra Yadav sustained injuries on
account of assault committed by the villagers during the course
of apprehending them.
Consideration and Analysis:
13. I have heard both sides, perused the impugned
judgment and the evidence adduced by both sides available on
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the record of the trial court, and also taken into account the
statement of the appellant. In the instant matter, in view of the
prosecution evidence, particularly the evidence of PW-5, the son
of the injured, it is an admitted position that there existed
inimical relations between the appellant and the prosecution
party. It is settled law that enmity is a double-edged weapon,
which can be used both to falsely implicate a person and to take
revenge. Where enmity is an admitted fact between the
prosecution party and the accused, the prosecution evidence is
required to be scrutinized with great care.
13.1. As per the prosecution case, at the time of the
alleged occurrence, the informant and his brother, Bale Yadav,
were sitting and talking to each other at the gate of their house.
In the meantime, the appellant and co-accused Sahendra Yadav
came there, started abusing them, and thereafter opened fire,
causing firearm injury to the informant’s brother, Bale Yadav,
resulting in his falling on the ground. Thereafter, the appellant
opened fire at the informant when he tried to run away in order
to save himself. It was further revealed by the informant that
upon hearing the cries and commotion, the villagers gathered,
chased the appellant and co-accused Sahendra Yadav, managed
to catch hold of them, and recovered firearms from their
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persons.
13.2. Regarding these incidents, the evidence of
Bale Yadav (PW-1) and Uma Shanker Yadav (informant/PW-4)
is most important. Bale Yadav (PW-1), in his examination-in-
chief, deposed that the appellant fired at him and that the bullet
splinters hit his hand. Thereafter, the appellant fired at his
brother, but the bullet of second round of firing got trapped in
the barrel of the pistol, resulting in no firing towards the
informant.
13.3. The informant (PW-4), in his examination-in-
chief, deposed that the accused fired at him when he was trying
to run away. According to him, the appellant again fired at him,
but the shot did not hit him.
14. Now, I come to the evidence of the medical
expert (PW-7), who examined Bale Yadav, found the injuries,
and gave the following opinion:
(i) “Multiple rashes on the whole interior part of the
right upper extremity.”
Though an injury in the nature of rashes is possible from
a gunshot, but at the same time, when splinters hit a part of the
human body, there must be some cutaneous reactions, including
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rashes, dermatitis, and localized inflammation, particularly
when such type of injury results in bleeding. However, in this
regard, there is no specific medical opinion. Further, the medical
expert did not examine the injured to ascertain whether other
relevant materials, such as the injured clothes containing
gunpowder residue, specifically potassium nitrate or other
components, were present or not. As such, the opinion of the
medical expert is not fully corroborative to the allegation of the
informant, particularly regarding the injuries of PW-1 being the
result of scratches caused by splinters of a firearm.
15. In this matter, the prosecution failed to produce
the alleged country-made pistol, which was allegedly used by
the appellant while firing at the informant and his brother,
despite the same being in the custody of the police. Further, the
Investigating Officer did not make any attempt to get the seized
firearm (country-made pistol) examined by a ballistic expert to
determine whether the same was in working or usable condition.
For attracting the offence under Section 27 of the Arms Act, the
prosecution is bound to prove that the alleged firearm used by
the accused was in a condition capable of firing. In the present
matter, although the appellant has been convicted under Section
27 of the Arms Act, but the prosecution failed to prove that the
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alleged firearm (country-made pistol) was in working condition
by adducing the opinion of a ballistic expert.
16. It is also important to mention the evidence of
the Investigating Officer (PW-6). He deposed in his
examination-in-chief that the bullet shell and bullet were
produced by the informant before him at the place of
occurrence. The seizure memo attached to the fardbeyan also
shows that the alleged firearms were not recovered by the
police; rather, the same were produced by the prosecution party,
and such production is considered weak evidence to prove
recovery of the alleged firearms. In the present matter, as per the
Investigating Officer, only the used shell and the unused bullet
were produced by the informant, and he stated nothing about the
production of a country-made pistol by the informant.
17. In order to prove recovery of the alleged firearm
from the possession of the appellant and co-accused Sahendra
Yadav, the evidence of independent villagers would have been
material; however, none of them was produced and examined by
the prosecution. As far as the contradictions among the
testimonies of the prosecution witnesses, as pointed out by the
appellant’s counsel, are concerned, I find certain material
contradictions. PW-1 deposed in his cross-examination that the
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accused did not fire at his brother (the informant), whereas as
per the fardbeyan of the informant and his testimony, the
appellant fired at him. PW-2, the brother of the informant,
deposed in paragraph No. 10 of his cross-examination that there
was bleeding from the chest and stomach of Bale Yadav and that
some drops of blood also fell on the ground. This statement does
not get corroboration from the injury report of Bale Yadav. PW-
3 stated in the paragraph No. 13 of his cross-examination that
although Bale Yadav sustained injury, there was no bleeding.
The Investigating Officer (PW-6), who arrived at the place of
occurrence, did not state in his evidence that he found any blood
spots, stains, or any signs of firing at the alleged place of
occurrence.
Conclusion :-
18. In view of the aforesaid facts and circumstances
emerging from the prosecution evidence, I reach to this
conclusion that the prosecution remained fail to prove the
alleged offences, for which the appellant was convicted, beyond
reasonable doubt before the trial court. This Court is not
persuaded to affirm the judgment of the trial court convicting
the appellant for the offences under Section 323 of the IPC and
Section 27 of the Arms Act. Accordingly, the impugned
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judgment of conviction and order of sentence are hereby set
aside, and the instant appeal stands allowed.
19. The appellant is on bail. Accordingly, he and his
sureties are discharged from the liabilities arising out of their
respective bail bonds.
20. Let the records of the trial court, along with a
copy of this judgment, be transmitted forthwith to the trial court
for necessary compliance.
(Shailendra Singh, J)
annu/-
AFR/NAFR AFR
CAV DATE NA
Uploading Date 05.02.2026
Transmission Date 05.02.2026
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