Patna High Court

SUKHARI RAM and ORS.versusTHE STATE OF BIHAR

Decided: 30 April 2026
Disposal: PARTLY ALLOWED (DISPOSAL)
Bench: PURNENDU SINGH

Holding

The conviction under Sections 307/34 IPC is set aside, while the conviction under Section 323 IPC is upheld.

Summary

The appellants were convicted by the trial court for offences under Sections 307/34 and 323 of the Indian Penal Code for allegedly assaulting the informant Chhabilal Ram on a dark night, resulting in a head injury. They appealed, contending that the sole eyewitnesses were interested, the investigation was flawed, and there was no proof of a common intention to murder. The High Court examined the testimonies of eight prosecution witnesses, noting that the key witnesses were either hostile, post‑occurrence, or had inconsistencies, and that the medical report did not conclusively link the injury to an assault. Applying the legal standards for attempt to murder, the Court held that the prosecution failed to establish the requisite intention or knowledge to cause death, and therefore the conviction under Section 307 was unsustainable. However, the Court found sufficient evidence for the lesser offence of voluntarily causing hurt under Section 323, upheld that conviction, and reduced the sentence to the period already served, ordering the appellants’ release. The appeal was partially allowed.

Issues considered

The prosecution proved the elements of an attempt to murder under Section 307 IPC beyond reasonable doubt.
Whether the conviction under Section 323 IPC for voluntarily causing hurt is sustainable.
Whether the sentence imposed for the offences is appropriate.

Legislation cited

Code of Criminal Procedure, 1973 — s. 313, 360
Indian Penal Code — s. 307, 323, 34

Subjects

attempt to murder
IPC 307
IPC 323
criminal appeal
evidence evaluation
hostile witness
prior enmity
sentence modification

Judgment

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.57 of 2012
Arising Out of PS. Case No.-15 Year-2003 Thana- DURGAWATI District- Kaimur (Bhabua)
======================================================
1. Sukhari Ram son of Khobhari Ram.
2. Rajendra Ram son of Khobhari Ram.
3. Dularchand Ram son of Kishori Ram
All R/O Village- Khamindoura, P.S- Durgawati, Distt- Kaimur At Bhabua

... ... Appellant/s
Versus
The State of Bihar

... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (SJ) No. 95 of 2012
Arising Out of PS. Case No.-15 Year-2003 Thana- DURGAWATI District- Kaimur (Bhabua)
======================================================
Mahipat Ram, S/O Jokhu Ram, resident of village- Khamindoura, P.S.-
Durgawati, District- Kaimur Bhabua

... ... Appellant/s
Versus
The State of Bihar

... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (SJ) No. 57 of 2012)
For the Appellant/s : Mr. Ravi Shankar Sahay, Advocate
Mr. Abhishek Singh Rathour, Advocate
For the Respondent/s : Mr. Abhay Kumar, A.P.P.
(In CRIMINAL APPEAL (SJ) No. 95 of 2012)
For the Appellant/s : Mr. Ravi Shankar Sahay, Advocate
Mr. Abhishek Singh Rathour, Advocate
For the Respondent/s : Mr. Abhay Kumar, A.P.P.
======================================================
CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
CAV JUDGMENT
Date : 30-04-2026
Heard Mr. Ravi Shankar Sahay, learned counsel for

the appellants and Mr. Abhay Kumar, learned APP for the State.
Patna High Court CR. APP (SJ) No.57 of 2012 dt.30-04-2026
2/19

2. The appellants have preferred the present criminal

appeals against the judgment dated 17-01-2012 and order of

sentence dated 21-01-2012 passed in S.Tr. No. 118/2013 of

2003/2007 (arising out of Durgawati P.S. Case No. 15/2003) by

learned 1st Addl. Sessions Judge, Kaimur at Bhabua, whereby,

the learned trial court has convicted the appellants under Section

307/34 and 323 of the Indian Penal Code and sentenced them to

undergo Rigorous Imprisonment for 10 years (for section 307 of

IPC) and further these three appellants were also sentenced to

undergo Rigorous Imprisonment for 1 years (for section 323 of

IPC).

3. The appellants have assailed the impugned

judgment primarily on the ground that the learned trial court has

failed to appreciate the evidence available on record in its

proper perspective and has erred in recording the conviction of

the appellants.

BRIEF FACTS OF THE CASE

4. The case of the prosecution, in brief, is that on

12.02.2003 at about 21:30 hours, the informant, Chhabilal Ram,

was returning to his house from Durgawati Bazaar. When he

reached near a well situated close to the house of Khobhari Ram

in village Khaminaura, the accused persons, namely Rajendra
Patna High Court CR. APP (SJ) No.57 of 2012 dt.30-04-2026
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Ram, Dularchand Ram, Sukhari Ram and Mahipat Ram,

allegedly surrounded him and, on account of previous enmity,

formed an unlawful assembly and assaulted him. It is further

alleged that during the course of the assault, accused Mahipat

Ram dealt a lathi blow on the head of the informant, causing

injury as a result of which he fell down and raised alarm. Upon

hearing the alarm, nearby persons reached the place of

occurrence, whereupon the accused persons fled away.

Thereafter, the injured was taken for treatment by his nephew,

Om Prakash Ram.

ARGUMENT ON BEHALF OF THE APPELLANTS

5. Learned counsel appearing on behalf of the

appellants submitted that the impugned judgment and order

dated 17.01.2012/ 21.01.2012 passed by Sri Rudra Pratap Singh,

1st Additional Sessions Judge, Kaimur at Bhabua, in S.T. No.

118/13 of 2003/07, whereby the appellants were convicted for

offences under Sections 307/34 and 323 of the IPC and

sentenced to 10 years and 1 year rigorous imprisonment

respectively (to run concurrently), is bad in law and on facts,

and is liable to be set aside. The sole eyewitness to the alleged

assault, P.W. 2, is none other than the nephew of the informant,

rendering his testimony interested and unreliable. P.W. 1 was
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declared hostile, and P.W. 5, the informant himself, admitted in

his deposition that the assault was committed solely by Mahipal

Ram. The witnesses P.W. 3, 6, and 7, being close relatives of the

informant, admitted the existence of prior enmity, giving rise to

a strong inference of false implication.

6. Learned counsel further submitted that the

Investigating Officer (P.W. 8) conceded that no signs of violence

were found at the place of occurrence, no blood-stained articles

were recovered, and no proper source of identification was

established. The appellants admittedly did not physically touch

the victim, and at best could only be characterized as instigators,

for which the sentence of 10 years Rigorous Imprisonment is

grossly disproportionate and harsh. The trial court failed to

appreciate the material contradictions in the prosecution

evidence, failed to consider the applicability of Section 360

Cr.P.C. inasmuch as the appellants were first-time offenders who

had remained on bail throughout without any previous

conviction, and failed to consider the absence of any intention

on the part of the appellants to kill the victim.

ARGUMENT ON BEHALF OF THE STATE

7. Per Contra, learned APP appearing for the State while

opposing the appeal submitted that the learned District court,
Patna High Court CR. APP (SJ) No.57 of 2012 dt.30-04-2026
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after considering all the evidences on record and exhibits

submitted on behalf of the parties during the course of trial, has

rightly convicted the appellants for said offences.

ANALYSIS AND CONCLUSION

8. Heard the parties.

9. I have perused the lower court records and

proceedings and also taken note of the arguments canvassed by

learned counsel appearing on behalf of the parties.

10. With reference to the aforesaid rival legal

contention urged on behalf of the parties, I have carefully

examined the case to find out whether the impugned judgment

warrants interference by this Court on the charge levelled

against the accused/appellants under Sections 307/34 and 323 of

IPC.

11. During the trial, the prosecution has examined

altogether eight witnesses, namely:

(i). P.W.1 – Ghuna Ram (Hostile)

(ii). P.W.2 – Om Prakash Ram

(iii). P.W.3 – Bikrama Ram

(iv). P.W.4 – Dr. Vinod Kumar Kashyap

(v). P.W.5 – Chhabilal Ram (Informant)
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(vi). P.W.6 – Surendra Ram

(vii). P.W.7– Nibulal Prasad

(viii). P.W.8 – Daroga Rai

12. The prosecution has also relied upon following

documents exhibited during the course of trial:

(i) (Exhibit-1) - Signature of Om Prakash Ram on

the fardbeyan.

(ii) (Exhibit-1/1) - Signature of Chhabilal Ram on

the fardbeyan.

(iii) (Exhibit-2) - Injury report of Chhabilal Ram

(iv) (Exhibit-2/1) - Another injury report of Chhabilal

Ram

13. From the perusal of records, I proceed to analyse

the statements of the prosecution witnesses whether they have

supported the prosecution case.

(i) P.W.1- Ghuna Ram, has been declared hostile by

the prosecution as he has not supported the prosecution case in

material particulars.

(ii) P.W.2- Om Prakash Ram, He is the nephew of the

informant, Chhabilal Ram, he supported the prosecution case in

his examination-in-chief. His signature on the fardebeyan was
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marked as Exhibit 1. He stated that by the time he reached the

place of occurrence, the accused persons had already fled. He

also noted that the incident occurred on a dark night.

(iii) P.W.3.- Bikrama Ram, He testified that the

informant told him directly that Mahipat Ram had assaulted him

on the head with a lathi. He deposed that he saw the informant's

head was cracked and blood was oozing out. In paragraph 9, he

claimed there was no previous enmity between the accused

persons and the informant.

(iv) P.W.4.- Dr. Vinod Kumar Kashyap, he found a

lacerated wound on the fronto-parietal region with bleeding

from the nose. Based on the report, he found a mildly depressed

communicated fracture of the right basi-frontal with a small

extra-dural haematoma. He classified the injuries as grievous

and dangerous to life, caused by a hard and blunt substance. He

admitted that the injuries could potentially be caused by falling

on a hard stone. He also noted that he did not take the signature

or thumb impression of the injured on the report.

(v) P.W.5. - Chhabilal Ram (Informant) The informant

and victim in the case. He supported the facts of the prosecution

case as originally stated in his fardebeyan. His signature on the

fardebeyan was marked as Exhibit 1/1. He admitted there was
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previous litigation with the accused persons. He testified that it

was a dark night and he had turned off his motorcycle lights. He

denied the defense suggestion that his injury resulted from

falling into a drain.

(vi) P.W.6. - Surendra Ram, he testified to seeing the

informant in an injured and unconscious state, with his head

drenched in blood. He admitted he was sleeping in his house at

the time of the occurrence and was only informed of the

incident later that night. He denied the defense theory that the

informant fell into a drain.

(vii) P.W.7. - Nibulal Prasad, he went to the place of

occurrence after hearing a "hulla" (commotion) and found the

informant unconscious and injured. He stated in cross-

examination that Chhabilal Ram is his brother by village

relationship. He admitted he was sleeping when the incident

occurred. In paragraph 5, he deposed that no previous enmity

existed between the informant and the accused.

(viii) P.W.8. - Daroga Rai, he Investigating Officer

(I.O.) of the case. He recorded the fardebeyan and identified the

place of occurrence near a well in village Khaminaura. He

admitted he did not record statements from the accused or

nearby residents. He did not find motorcycle tracks on the road,
Patna High Court CR. APP (SJ) No.57 of 2012 dt.30-04-2026
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nor did he collect blood-drenched clothes or samples from the

scene.

14. On the basis of materials surfaced during the

trial, the appellants/accused were examined under Section 313

of the Cr.PC by putting incriminating circumstances/evidences

surfaced against him, which they denied and showed their

complete innocence.

15. It would be appropriate to reproduce the

provisions of Sections 307/34 and 323 of I.P.C. for the sake of

convenience and better understanding of the facts, which are 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.
Illustrations
(a) A shoots at Z with intention to kill him, under such
circumstances that, if death ensued. A would be guilty of
murder. A is liable to punishment under this section.
(b) A, with the intention of causing the death of a child of
tender years, exposes it in a desert place. A has committed
the offence defined by this section, though the death of the
child does not ensue.
(c) A, intending to murder Z, buys a gun and loads it. A has
not yet committed the offence. A fires the gun at Z. He has
committed the offence defined in this section, and if by such
Patna High Court CR. APP (SJ) No.57 of 2012 dt.30-04-2026
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firing he wounds Z, he is liable to the punishment provided
by the latter part of the first paragraph of this section.
(d) A, intending to murder Z by poison, purchases poison
and mixes the same with food which remains in A’s keeping;
A has not yet committed the offence defined in this section.
A places the food on Z’s table or delivers it to Z’s servant to
place it on Z’s table. A has committed the offence defined in
this section.
323. Punishment for voluntarily causing hurt.—
Whoever, except in the case provided for by section 334,
voluntarily causes hurt, shall be punished with
imprisonment of either description for a term which may
extend to one year, or with fine which may extend to one
thousand rupees, or with both.”

16. The record reveals that P.W.1 – Ghuna Ram

has been declared hostile during trial as he has not supported the

prosecution case on material particulars. In absence of any

reliable and independent corroboration from other prosecution

witnesses, the testimony of this witness loses its evidentiary

value for the purpose of establishing the guilt of the

accused/appellants. Accordingly, the evidence of P.W.1 is not of

much assistance to the prosecution case.

17. The prosecution case substantially rests upon

the testimonies of P.W.2 – Om Prakash Ram and P.W.5 –

Chhabilal Ram (informant), with limited support from P.W.3

– Bikrama Ram, while P.W.1 – Ghuna Ram has not supported

the prosecution case and has been declared hostile, and P.W.6 –

Surendra Ram and P.W.7 – Nibulal Prasad do not provide

any direct evidence of the occurrence, being post-occurrence
Patna High Court CR. APP (SJ) No.57 of 2012 dt.30-04-2026
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witnesses. The testimony of the material witnesses attributes

specific overt acts mainly against accused Mahipat Ram;

however, their version is not free from inconsistencies,

particularly with regard to the manner of occurrence, visibility

at the place of occurrence in a dark night, and the presence or

absence of prior enmity. Furthermore, the evidence suffers from

infirmities in investigation, as reflected from the testimony of

P.W.8 – Daroga Rai (I.O.), who has admitted not examining

independent witnesses and not collecting material evidence

from the place of occurrence. In such circumstances, the

prosecution version does not inspire full confidence for

sustaining the conviction of the accused/appellants.

18. The medical evidence of P.W.4 – Dr. Vinod

Kumar Kashyap indicates that the informant sustained a

lacerated wound on the head along with a fracture, which has

been opined to be grievous and caused by a hard and blunt

substance; however, the doctor has also admitted that such

injuries could be caused by a fall on a hard surface, thereby not

fully ruling out an alternative mode of injury and weakening the

certainty of the prosecution version. Furthermore, independent

witnesses have either not supported the prosecution case or are

not eyewitnesses to the occurrence, inasmuch as P.W.1 –
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Ghuna Ram has been declared hostile, while P.W.6 –

Surendra Ram and P.W.7 – Nibulal Prasad are admittedly

post-occurrence witnesses. It is also evident that the case arises

out of prior enmity between the parties, and the occurrence is

alleged to have taken place in a dark night, which raises doubt

regarding identification of the assailants. In such circumstances,

the possibility of exaggeration and false implication cannot be

ruled out, and the prosecution has failed to establish, beyond

reasonable doubt, the common intention and specific

involvement of all the accused persons.

19. It is well settled that 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 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
Patna High Court CR. APP (SJ) No.57 of 2012 dt.30-04-2026
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but must also perform an act that clearly demonstrates the

commencement of the offence.

20. The Apex Court laid down the litmus test for

determination of nature of offence in Pulicherla Nagaraju v.

State of A.P. reported in (2007) 1 SCC (Cri) 500. In the facts

and circumstances of a particular case, the Court needs to decide

the pivotal question of existence of intention with care and

caution. The following factors needs to be examined:

"(i) nature of the weapon used;
(ii)whether the weapon was carried by the accused or
was picked up from the spot;
(iii) whether the blow is aimed at a vital part of the body;
(iv) the amount of force employed in causing injury;
(v) whether the act was in the course of sudden quarrel or
sudden fight or free for all fight;
(vi) whether the incident occurs by chance or whether
there was any premeditation;
(vii) whether there was any prior enmity or whether the
deceased was a stranger;
(viii)whether there was any grave and sudden
provocation, and if so, the cause for such provocation;
(ix) whether it was in the heat of passion;
(x) whether the person inflicting the injury has taken
undue advantage or has acted in a cruel and unusual
manner;
(xi) whether the accused dealt a single blow or several
blows."

21. The similar question came up before the Supreme

Court in the case of Joseph v. State of Kerala, reported in 1995

SCC (Cri) 165 has observed in para 3 which is reproduced
Patna High Court CR. APP (SJ) No.57 of 2012 dt.30-04-2026
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hereinafter:

“3. In this appeal the learned
counsel for the appellant submits that the
intention to cause the injury which was found
sufficient to cause the death in the ordinary
course of the nature was not established. In
support of this submission he relied on the
circumstances namely that the whole incident
took place because of a trivial incident which
resulted in a quarrel and that the weapon
used was only a lathi and in the
circumstances it cannot be said that the
accused intended to cause the death by
inflicting that particular injury which
objectively was proved by the medical
evidence to be sufficient in the ordinary
course of nature to cause death. In other
words he submits that clause 3rdly of Section
300 IPC is not attracted in this case. We find
considerable force in the submission. The
weapon used is not a deadly weapon as
rightly contended by the learned counsel. The
whole occurrence was a result of a trivial
incident and in those circumstances the
accused dealt two blows on the head with a
lathi, therefore, it cannot be stated that he
intended to cause the injury which is
sufficient (sic). At the most it can be said that
by inflicting such injuries he had knowledge
that he was likely to cause the death. In
which case the offence committed by him
would be culpable homicide not amounting
to murder. We accordingly set aside the
conviction of the appellant under Section 302
IPC and the sentence of imprisonment for life
awarded thereunder. Instead we convict the
appellant under Section 304 Part II IPC and
sentence him to five years' RI.”

22.The judgment of Joseph (supra) was referred

by the Apex Court in the case of Jugatram Vs. State of

Chhattisgarh, reported in (2020) 9 SCC 520.

23. Further to sustain a conviction under Section 307
Patna High Court CR. APP (SJ) No.57 of 2012 dt.30-04-2026
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IPC, the Apex Court in the case of Sivamani v. State, reported

in, 2023 SCC OnLine SC 1581, in paragraph no. 9 has 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 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.”

24. Admittedly, from the prosecution case itself, it

transpires that the alleged occurrence arose out of previous

enmity between the parties and is stated to have taken place

suddenly at night, without any clear evidence of premeditation

or prior meeting of minds, the incident having occurred in the

course of a sudden confrontation. Further, the prosecution

evidence suffers from material infirmities as the case primarily

rests upon the testimonies of P.W.2 – Om Prakash Ram and

P.W.5 – Chhabilal Ram (informant), with limited support
Patna High Court CR. APP (SJ) No.57 of 2012 dt.30-04-2026
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from P.W.3 – Bikrama Ram, whose versions are not wholly

consistent on material particulars, particularly with regard to the

manner of occurrence, visibility due to darkness, and the role

attributed to the accused persons, while independent witnesses

do not lend reliable support inasmuch as P.W.1 – Ghuna Ram

has turned hostile and P.W.6 – Surendra Ram and P.W.7 –

Nibulal Prasad are not eyewitnesses to the occurrence.

Moreover, the medical evidence of P.W.4 – Dr. Vinod Kumar

Kashyap, though indicating a grievous head injury caused by a

hard and blunt substance, also admits the possibility of such

injury being caused by a fall on a hard surface, thereby not

conclusively supporting the prosecution version. When

considered along with the admitted background of prior enmity

and the infirmities in investigation, the cumulative effect of

these circumstances creates serious doubt regarding the manner

of occurrence and the specific involvement of the accused

persons, thereby rendering the charge under Section 307 of the

Indian Penal Code unsustainable.

25. I find that the facts of the present case are

squarely covered by the judgment passed by the Apex Court in

case of Sivamani (supra) and in view of the aforesaid

discussion of factual and legal aspects, it emerges that the
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alleged occurrence took place in a sudden manner on account of

prior enmity between the parties and without any clear

premeditation or prior meeting of minds of the accused persons.

The nature of the incident, the surrounding circumstances, and

the medical evidence, particularly the testimony of P.W.4 – Dr.

Vinod Kumar Kashyap, indicate that although the informant

sustained a head injury opined to be grievous in nature, the same

has been attributed to a hard and blunt substance and the doctor

has also admitted the possibility of such injury being caused by

a fall on a hard surface, thereby creating doubt regarding the

manner of assault. In the backdrop of inconsistent testimonies of

the material witnesses, lack of reliable independent

corroboration, and infirmities in investigation, the evidence on

record does not conclusively establish the requisite intention or

knowledge to cause death so as to attract the provisions of

Section 307 of the Indian Penal Code. Rather, the materials on

record, at best, indicate an act of causing hurt by use of a blunt

object, and thus, this Court is of the considered opinion that the

offence under Section 307 IPC is not made out and the

conviction, if any, can be sustained only for a lesser offence in

accordance with law. The learned trial court has rightly

appreciated the evidence in convicting the appellants under
Patna High Court CR. APP (SJ) No.57 of 2012 dt.30-04-2026
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Section 323 of the Indian Penal Code, particularly in view of the

injury reports showing injuries caused by hard and blunt

substance.

26. In the background of the discussions made

hereinabove and on taking an overall view, the Impugned

judgment dated 17-01-2012 and order of sentence dated 21-01-

2012 passed in S.T. No. 118/13 of 2003/07 (arising out of

Durgawati P.S. Case No. 15/2003) is varied only to the extent

that the conviction of the appellants stands modified to that

under Sections 323 of the IPC.

27. However, so far as, the sentence is concerned,

having regard to the facts and circumstances of the case and the

period already undergone by the appellants, the sentence of

rigorous imprisonment for one year is modified and reduced to

the period already undergone. It is directed that if the appellants

have already undergone the modified sentence, they shall be set

at liberty forthwith, unless required in connection with any other

case. The appellants are discharged from the liabilities of their

bail bonds, if any.

28. Accordingly, the present appeals are partially

allowed.
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29. Office is directed to send back the lower court

records along with a copy of the judgment to the learned District

Court forthwith.

(Purnendu Singh, J)

Niraj/-
AFR/NAFR N.A.F.R.
CAV DATE 23.04.2026
Uploading Date 30.04.2026
Transmission Date 30.04.2026

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