Patna High Court

NANNKU @ NANKU SAHversusTHE STATE OF BIHAR

Decided: 10 March 2026
Disposal: ALLOWED
Bench: PURNENDU SINGH

Holding

The appeal is allowed; the conviction and sentence are set aside and the appellants are acquitted.

Summary

The appellants challenged their conviction under IPC sections 323 and 34 for voluntarily causing hurt, arguing that the trial court failed to properly assess the evidence and that key witnesses – the investigating officer and the medical officer – were not examined. The prosecution’s case was based on a written report by an informant alleging a land‑dispute‑related assault, with seven prosecution witnesses and documentary evidence. The appellants contended that the informant and other witnesses were hostile, that the medical report was untested, and that there was no reliable proof of each accused’s participation. The High Court held that the trial court’s judgment was infirm because the prosecution did not establish the charges beyond reasonable doubt and the omission of material witnesses created prejudice. Consequently, the appeal was allowed, the conviction and sentence were set aside, and the appellants were acquitted and discharged from bail.

Issues considered

Whether the conviction under IPC sections 323 and 34 can be sustained in view of the non‑examination of the investigating officer and medical officer.
Whether the prosecution proved the offences beyond reasonable doubt given the alleged hostile witnesses and lack of reliable medical evidence.

Legislation cited

Code of Criminal Procedure, 1973 — s. 313, 374(2)
Indian Penal Code — s. 307, 323, 325, 34, 341

Subjects

criminal appeal
IPC 323
evidence
non‑examination of witnesses
benefit of doubt
acquittal
bail

Judgment

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.7 of 2011
======================================================
1. NANNKU @ NANKU SAH Late Jangali Sah R/O,Vill.-Selar Kala, P.S.-
Fulwariya, Dist.Gopalganj
2. Manager Sah, Son of Late Jangali Sah, R/O Vill.-Selar Kala, P.S.-Fulwariya,
Dist.- Gopalganj
3. Kanhaiya Sah @ Kanhaiya, S/o Dwarika Sah, R/O Vill.-Selar Kala, P.S.-
Fulwariya, Dist.-Gopalganj.

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

... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr.Rudra Pratap Singh, Amicus curiae
For the Respondent/s : Mr.S.N.Prasad, APP.
======================================================
CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL JUDGMENT
Date : 10-03-2026
The appeal was admitted on 17.01.2011, on which

date, the provisional bail granted to the appellants was

confirmed and since then no one has appeared on behalf of the

appellants in spite of the adjournments granted by this Court on

19.01.2017, 27.03.2025, 03.07.2025, 17.07.2025 and

03.02.2026.

2. Taking into consideration the conduct of the

appellants and the fact that this Court is clogged with old

criminal appeals, this court appoints Mr. Rudra Pratap Singh as

Amicus Curiae .

FACTS OF THE CASE

3. The present appeal has been filed under Section 374
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(2) of the Code of Criminal Procedure challenging the judgment

of conviction and order of sentence dated 02.12.2010 passed by

the learned Additional District and Sessions Judge cum Fast

Track Court-I, Gopalganj in Sessions Case No.

229/2005/155/2009, arising out of Fulwariya P.S. Case No. 09 of

2002, G.R. No. 228/02 whereby the learned trial court convicted

the appellants for the offence punishable under Section 323/34

of the Indian Penal Code and sentenced them to undergo S.I. for

9 months.

4. Being aggrieved 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.

5. The prosecution case, in brief, is that Fulwariya P.S.

Case No. 9/2002 was instituted on the basis of a written report

submitted by the informant, Raghubar Sah. In his report, the

informant alleged that at about 4:00 P.M., while he was present

at his Bathan, all the accused persons named in the F.I.R. arrived

there, began abusing him, and questioned why he had sold the
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land. Thereafter, the accused persons allegedly started assaulting

the informant with lathis. During the occurrence, accused

Kanaiha Sah caught hold of the informant and instigated others

to kill him, whereupon Jangali Sah and Nanhaku Sah allegedly

assaulted the informant on the head, as a result of which he

sustained injuries on his head and his left hand was fractured.

The alleged cause of the occurrence was stated to be a dispute

relating to land.

6. On the basis of the written report of the informant,

Fulwariya P.S. Case No.9 of 2002 was instituted under Sections

341, 323, 325 and 307/34 of the Indian Penal Code. After

investigation, the police submitted charge sheet under Sections

341, 323, 325 and 307/34 of the Indian Penal Code. The learned

Magistrate took cognizance of the offence and committed the

case to the court of sessions. Charge against the accused persons

was framed under Sections 341, 323, 325 and 307/34 of the

Indian Penal Code. Charges were read over and explained to

them by the Court to which they pleaded not guilty and claimed

to be tried.

ARGUMENT ON BEHALF OF APPELLANT

7. Learned Amicus curiae appearing on behalf of the

appellants submitted that the impugned judgment of conviction
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passed by the learned trial court is wholly illegal, perverse and

not sustainable in the eyes of law as the same has been passed

without proper appreciation of the evidence available on record.

It is submitted that the alleged occurrence is said to have taken

place due to a land dispute between the parties which clearly

indicates that the appellants have been falsely implicated in the

present case on account of previous enmity. It is further

submitted that the prosecution witnesses are interested witnesses

and their evidence suffers from material contradictions and

inconsistencies. Moreover, two prosecution witnesses namely

Mansi Mian and Lalan Rai did not support the prosecution case

and were declared hostile, which creates serious doubt about the

credibility of the prosecution story.

8. Learned counsel further submitted that the

prosecution has also failed to prove the injuries in accordance

with law as the injury report was proved only through a formal

witness and the doctor who allegedly examined the informant

was not examined before the court, thereby depriving the

appellants of the opportunity to cross-examine the medical

officer regarding the nature and cause of injuries. It is also

submitted that there is no specific and reliable evidence

regarding the overt act of each of the appellants and the
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evidence on record is vague and omnibus in nature. The learned

trial court itself did not find sufficient evidence to sustain the

charges under Sections 341, 325 and 307/34 IPC and ultimately

convicted the appellants only under Section 323/34 IPC, which

clearly shows that the prosecution case was not proved in its

entirety. Therefore, the appellants are entitled to the benefit of

doubt and the impugned judgment and order of conviction are

liable to be set aside.

ARGUMENT ON BEHALF OF THE STATE

9. Per contra, learned APP appearing for the State

while opposing the appeal submitted that the learned District

court, 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

10. I have perused the lower court records and

proceedings and also taken note of the argument made by

learned Amicus Curiae and learned APP for the State.

11. The learned trial court, on the basis of materials as

collected during the course of investigation, passed the

Judgment of Conviction dated 02.12.2010 for the offences under

Section 323/34 of the IPC.
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12. During the trial, the prosecution has examined

altogether seven witnesses, namely:

(i) P.W.-1 - Ramdeo Sah

(ii) P.W.-2 - Shyamdeo Sah

(iii) P.W.-3 - Subedar Mian

(iv) P.W.-4 - Mansi Mian

(v) P.W.-5 - Lalan Rai

(vi) P.W.-6 - Umesh Rai

(vii) P.W.-7- Ainul Huque

13. The prosecution has also relied upon following

documents exhibited during the course of trial:-

(i) Injury Report (Exhibit-1)

(ii) Signature of Officer in Charge Fulwariya P.S.

(Exhibit-2).

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 them, which they denied and show 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
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present appeal.

16. It would be appropriate to reproduce the

provisions of Section 323/34 of the IPC for the sake of

convenience and better understanding of the facts, which are as

under:

“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.

17. Having perused the materials available on

record, the sole ground for interfering with the impugned

judgment is that the appellants were roped in a false case due to

enmity with the informant and the material witnesses like the

informant, investigating officer and the medical officer have not

been examined to corroborate the prosecution case. The

appellants were all along on bail during the whole period of trial

and had never misused the privilege of bail granted in their

favour.

18. The records disclose that neither the Investigating

Officer nor the Medical Officer was examined during the course

of trial. Undoubtedly, both are material witnesses, the former

being essential to explain the manner in which the investigation

was conducted and the steps taken during investigation, and the
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latter to prove the medical evidence relating to the nature and

cause of injuries. Their examination also affords the defence an

opportunity to test the fairness of the investigation and the

medical findings through cross-examination. However, it is well

settled that the mere non-examination of the Investigating

Officer or the Medical Officer does not ipso facto vitiate the

prosecution case. The effect of such omission has to be assessed

in the facts and circumstances of each case, particularly with

regard to whether any prejudice has been caused to the accused;

and where the ocular and other substantive evidence is otherwise

found to be cogent, reliable and trustworthy, the prosecution

case cannot be rejected on that ground alone. In this regard,

refernce can be drawn from the judgment passed by the Apex

Court in para no. 18 in the case of Rajesh Patel v. State of

Jharkhand, reported in (2013) 3 SCC 791 is reproduced

hereinafter:

“18. Further, neither the doctor nor the IO has been
examined before the trial court to prove the
prosecution case. The appellant was right in
bringing to the notice of the trial court as well as the
High Court that the non-examination of the
aforesaid two important witnesses in the case has
prejudiced the case of the appellant for the reason
that if the doctor would have been examined he
could have elicited evidence about any injury
sustained by the prosecutrix on her private part or
any other part of her body and also the nature of
hymen layer, etc. so as to corroborate the story of
the prosecution that the prosecutrix suffered
unbearable pain while the appellant committed rape
on her. The non-examination of the doctor who had
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examined her after 12 days of the occurrence has
not prejudiced the case of the defence for the reason
that the prosecutrix was examined after 12 days of
the offence alleged to have been committed by the
appellant because by that time the sign of rape must
have disappeared. Even if it was presumed that the
hymen of the victim was found ruptured and no
injury was found on her private part or any other
part of her body, finding of such rupture of hymen
may be for several reasons in the present age when
the prosecutrix was a working girl and that she was
not leading an idle life inside the four walls of her
home. The said reasoning assigned by the High
Court is totally erroneous in law.”
19. I find that the trial court has failed to consider

that the informant was the eye witness who has alleged that

incidence has taken place in his presence while he has failed to

examine himself in course of trial. As a result of vital infirmity

in the impugned judgment, it appears that the prosecution has

miserably failed to establish the charges levelled against the

appellants/accused during the trial.

20. Accordingly, the present appeal is allowed.

21. The impugned judgment of conviction and

sentence dated 02.12.2010, passed by learned Additional

District and Sessions Judge cum Fast Track Court-I, Gopalganj

in Sessions Case No. 229/2005/155/2009, arising out of

Fulwariya P.S. Case No. 09 of 2002, G.R. No. 228/02 is hereby

set aside. Consequently, the above-named appellants/accused

are acquitted from all the charges levelled against them. Since

the appellants are on bail, as such, they are discharged from the
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liability of their bail bonds. The fine deposited by the

appellants, if any, shall be refunded to them.

22. The Patna High Court, Legal Services Committee

is, hereby, directed to pay a sum of Rs. 5,000/- (Rupees Five

Thousand) to Mr. Rudra Pratap Singh, learned Amicus Curiae,

as consolidated fee, for rendering his valuable professional

service for disposal of the present appeal.

23. 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)

mantreshwar/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 16.03.2026
Transmission Date 16.03.2026

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