Patna High Court
Biren Sah and Ors.versusThe State Of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- PURNENDU SINGH
Holding
The conviction of the appellants under IPC sections 147, 148 and 323 is upheld.
Summary
The appellants were convicted for rioting (IPC s.147, s.148) and voluntarily causing hurt (IPC s.323) arising from a neighbour dispute over rain‑water drainage that escalated into an altercation involving lathis, a farsa and an alleged arrow. The prosecution relied on eight witnesses, three of whom were declared hostile, and medical evidence showing only simple blunt injuries. The defence argued that the prosecution failed to prove the use of deadly weapons, that key witnesses were hostile, and that the investigating officer was not examined. The High Court noted inconsistencies in the testimony and the non‑recovery of the alleged weapons but held that the overall evidence was sufficient to sustain the convictions. It ordered the appellants’ release on probation under the Probation of Offenders Act, 1958, and allowed the appeal.
Issues considered
- The prosecution proved the offences under IPC sections 147, 148 and 323 beyond reasonable doubt.
- Whether the non‑examination of the investigating officer and the non‑recovery of alleged weapons vitiated the conviction.
- Whether the medical evidence disproved the allegation of use of deadly weapons such as a farsa or arrow.
Legislation cited
- Indian Penal Code — s. 147, 148, 299, 323, 324
- Probation of Offenders Act, 1958 — s. 4
Subjects
- rioting
- unlawful assembly
- voluntarily causing hurt
- evidence assessment
- hostile witness
- medical evidence
- probation
- IPC
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.702 of 2012
Arising Out of PS. Case No.-153 Year-1994 Thana- BARHARA KOTHI District- Purnia
======================================================
1. Biren Sah, S/O Anirudh Sah,
2. Rajesh Sah @ Rajesh Kumar @ Bablu Sah @ Bablu, S/O Kamleshwari Sah
3. Kamlesh Sah @ Kamleshwari Sah, S/O Badri Sah,
4. Bipin Sah, S/O Badri Sah
5. Nago Sah @ Nago @ Nageshwar Sah, S/O Badri Sah
6. Umesh Sah, S/O Anirudh Sah
All resident Of Village- Barhara, Police Station- Barhara, District- Purnea
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Sanjay Kumar, Amicus Curiae
For the Respondent/s : Mr. Abhay Kumar, A.P.P.
======================================================
CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL JUDGMENT
Date : 02-07-2026
Heard Mr. Sanjay Kumar, learned Amicus Curiae
and Mr. Abhay Kumar, learned APP for the State.
2. The present appeal has been filed for setting
aside the judgment of conviction and order of sentence dated
31.07.2012 passed by the 1st Additional Sessions Judge, Purnea
in S.T. No.282/97 arising out of Barhara P.S. Case No.
153/1994, whereby and whereunder, the appellants have been
convicted for the offence punishable under Sections 147,148
and 323 of the Indian Penal Code and they were directed to be
released on furnishing probation bond of Rs. 10,000/- with two
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sureties of the like amount each for a period of one year for
maintaining peace and tranquility and good character and if it is
found that they commit such type of act during the period of
probation, they will be called and substantive sentence will be
inflicted against them.
BRIEF FACTS OF THE CASE
3. The prosecution case, in brief, is that a dispute
arose between the informant's family and the neighbouring
family of Badari Sah over obstruction caused in flow and
drainage of rainwater caused by a ridge constructed by the
appellants, resulting in waterlogging in front of the informant's
house. While the informant's children were removing the ridge,
an altercation ensued between the womenfolk of both families,
followed by brick-batting. Thereafter, the accused persons,
namely Nago Sah, Kamleshwari Sah, Bipin Sah, Umesh Sah,
Biren Sah and Bablu Sah, allegedly formed an unlawful
assembly armed with lathis, farsa and arrows and assaulted the
informant, his cousin Manoj Sah and other family members. It is
alleged that Nago Sah assaulted Manoj Sah with an arrow,
Umesh Sah and Bablu Sah inflicted farsa blows on the
informant, while the remaining accused assaulted the victims
with lathis. On the basis of the fardbeyan, the formal FIR was
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registered, investigation was conducted and, on completion
thereof, charge-sheet was submitted against all the accused
persons.
ARGUMENT ON BEHALF OF Amicus Curiae
4. Learned Amicus Curiae submitted that the
impugned judgment of conviction and order of sentence are
unsustainable in law, as well as, on facts. The prosecution has
failed to establish the charges beyond reasonable doubt. The
genesis of the occurrence has not been properly proved and the
case admittedly arose out of a sudden altercation between the
informant and the accused persons, who are neighbour, over the
drainage of rainwater. Out of eight prosecution witnesses, P.Ws.
2, 7 and 8 did not support the prosecution case and were
declared hostile. The Investigating Officer was not examined,
which has caused serious prejudice to the appellants, who were
not given the opportunity to prove material contradictions and
omissions in the statements of the prosecution witnesses.
Learned trial Court failed to appreciate that the defence had
brought on record that there exists previous enmity between the
parties through Ext. A, which establishes the motive for their
false implication. The evidence of the interested and related
witnesses, namely P.Ws. 3, 4 and 5, was accepted without
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independent corroboration, although the prosecution version
suffered from material inconsistencies regarding the manner of
assault and the weapons allegedly used.
5. Learned Amicus Curiae further submitted that
the medical evidence does not support the prosecution allegation
that the appellants assaulted the injured persons with deadly
weapons such as farsa and arrows. The doctor (P.W.6) found
only simple injuries caused by hard and blunt substances and
did not find any incised or penetrating injury corresponding to
the alleged use of farsa or arrow. Further defence case is that in
absence of any material evidence, the learned trial court was
bound to disbelieve the prosecution case under Sections 307 and
324 IPC. Once the specific allegations regarding use of deadly
weapons were found to be unsubstantiated, the entire
prosecution case became doubtful. In the facts and
circumstances of the case, the prosecution failed to prove the
formation of an unlawful assembly and the individual
participation of each appellant beyond reasonable doubt. The
appellants are, therefore, entitled to the benefit of doubt and
deserve to be acquitted of all the charges.
ARGUMENT ON BEHALF OF THE STATE
6. Per contra, learned APP appearing for the State
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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
7. Heard the parties.
8. 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.
9. The learned trial court, on the basis of materials
as collected during the course of investigation, passed the
Judgment of conviction and order of sentence dated 31.07.2012
for the offences under Section 147, 148 and 323 of the IPC.
10. During the trial, the prosecution has examined
altogether eight witnesses, namely:
(i) (P.W.-1),- Md. Rasool
(ii) (P.W.-2),- Kusheshwar Sah (Hostile)
(iii) (P.W.-3),- Binod Kumar Sah
(iv) (P.W.-4) ,- Manoj Kumar Sah
(v) (P.W.-5),- Subodh Kumar Sah (Informant)
(vi) P.W.6 – Dr. Ashok Kumar Thakur
(vii) P.W.7 – Bimal Sah (Hostile)
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(viii) P.W.8 – Md. Ahmad Hussain (Hostile)
11. During the trial, the defence has examined one
witness, namely, Bijay Kumar Bhagat
12. The prosecution has also relied upon following
documents exhibited during the course of trial:-
(i) Ext.1 – Signature of Subodh Kumar Sah on FIR
(ii) Ext.2 – Injury Report of Manoj Kumar Sah
(iii) Ext.2 a – Injury report of informant Subodh
Kumar Sah
(iv) Ext.3- Formal FIR
(v) Ext. A- Written FIR dated 23.06.1993
13. From the perusal of the records the statements
of the prosecution witnesses are as under:
(i) P.W.1-Md. Rasool is an eyewitness. He deposed
that on hearing alarm he reached the place of occurrence and
found an altercation between the two sides. He stated that Bablu
Sah assaulted Subodh Sah with a farsa, Nago Sah assaulted
Manoj Sah with an arrow and the other accused assaulted
Subodh Sah, Manoj Sah and Binod Sah with lathis. He further
stated that the injured were taken to the hospital. In cross-
examination, nothing material was elicited to discredit his
testimony.
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P.W.2 – Kusheshwar Sah did not support the
prosecution case and was declared hostile.
P.W.3 – Binod Kumar Sah, an injured witness,
supported the prosecution case. He stated that the accused
persons assaulted the informant and his family members with
farsa, arrow and lathis. He attributed specific overt acts to the
accused persons and remained consistent during cross-
examination.
P.W.4 – Manoj Kumar Sah is the injured victim.
He fully supported the prosecution version and stated that Nago
Sah assaulted him with an arrow, while other accused assaulted
him with lathis and the informant was assaulted with farsa by
Umesh Sah and Bablu Sah. His testimony remained unshaken in
cross-examination.
P.W.5 – Subodh Kumar Sah (Informant)
reiterated the allegations made in the fardbeyan regarding the
dispute over rainwater, the ensuing altercation and the assault by
the accused persons. He specifically stated that Umesh Sah and
Bablu Sah assaulted him with farsa and that the remaining
accused assaulted him and other family members with lathis,
while Nago Sah assaulted Manoj Sah with an arrow. His
evidence remained substantially intact during cross-
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examination.
P.W.6 – Dr. Ashok Kumar Thakur medically
examined Manoj Kumar Sah and Subodh Sah. He found three
simple injuries on Manoj Kumar Sah, namely one lacerated
wound with bruise over the abdomen and two abrasions, all
caused by hard and blunt substances. On Subodh Sah, he found
an abrasion on the head and a bruise on the left wrist, both
simple in nature. He opined that the injuries were caused by
hard and blunt or rough substances.
P.W.7 – Bimal Sah did not support the prosecution
case and was declared hostile.
P.W.8 – Md. Ahmad Hussain also failed to
support the prosecution case and was declared hostile.
D.W.1, Bijay Kumar Bhagat, a formal witness,
who proved an earlier written FIR dated 23.06.1993 (Ext. A) to
suggest previous enmity between the parties.
14. The learned trial Court, upon proper analysis of
the witnesses and the material which came in course of
investigation, as well as, in course of trial, has given its finding,
inter alia, as follows:
"6. In order to prove the charges prosecution
has examined 8 witnesses. P.W. 1 is Md. Rasool.P.W.2 is
Kusheshwar Sah. P.W.3 is Binod Kumar Sah. P.W.4 Manoj
Kumar sah is victim himself. P.W.5 Subodh Kumar Jah is
infomant himsel P.W.6 is Dr. Ashok Kumar Thakur, who has
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examined the victims of this case. P.W.7 is Bimal Sah and
P.w.8 is Md. Ahmad Hussain. 1.0. has not been examined in
this case by the prosecution. Besides the oral evidences
some documents hak also been exhibited by the
prosecution.Ext.1 is signature of informant Subodh Kumar
sah on the fardbeyar Ext. 2 is injury report of Manoj Kumar
Sah. Ext. 2/a is injury report of informant Subodh Sah and
Ext. 3 is formal F.I.R.
The accused persons have also examined a
witness Bijay Kumar Bhagat in their defence. He is a,
formal witness and he has just proved a written F.I.R. dated
23.6.93 which was marked Ext. A. It has been proved to
show the enemity between the accused persons and P.W.1
Md. Rasool.
7. P.W.1 Md. Rasool has fully supported the
prosecution case and has stated that his house is in side of
house of accused persons and the informant. On hulla he
went there and saw that hot discussions and abusing was
going on between both sides. Bablu sah gave a blow of
farsa on Subodh Sah and Nago Sah assaulted Maroj sah
with arrow. Other accused persons assaulted Binod şah,
sulod sah and Manoj Sah with lathi. Subodh Sah and Manoj
sah became injured and their father Deo Narayan Sah and
Satya Narain Sah took them to the hospital. In the cross
examination also this witness has supported the prosecution
case.Nothin has come in the cross examination which will
creat any doubt on the version of the prosecution.
Suggestion has ween given to this witress that the informant
side assaulted the accused persons. They assaulted Babloo
san also. This suggestion itself shows that some occurrence
took place.
8. P.ws, 2,7 and 8 were declared hostile by
the prosecution because they did not supported the
prosecution case and stated before the Court that they knew
rothing about the occurrence.
9. P.Ws. 3,4 and 5 are victims of this case.
They have also supported the prosecution case fully. They
have stated that accused persons assaulted them with farsa,
arrow and lathi. They have taken the name of all accused
persons: They have also stated that which accused persons
assaulted whom. It has also come in the statement of all
these 3 witnesses that the accused persons Umesh Sah
assaulted the informant with farsa. Nago sssaulted Umesh
Sah with arrows. Babloo Sah also assaulted the Informant
with farsa. Other accused persons assaulted him with
lathis. The statements of all these witnesses are, consistent
and there is no any contradiction in their testimony. Even in
their cross examination nothing has come which may create
any doubt against the statement of the prosecution. During
the cross examination the defence has tried to show the
enmity between both sides. But only on the basis of enmity
statement of witnesses can not be discarded and the defence
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has got chance to verify the testimony of the witnesses by
lengthy cross examination and gothing has been gain by the
defence. Enmity cuts in both ways. S0, this defence is not
tenable at all.
9. P.W.6 Dr. Ashok Kumar Thakur who has
examined two victims namely Manoj Kumar sah and
Subodh sah has stated that he found 3 injuries on the
persons of Manoj Sah. Firstly lacerated wound with bruise
12" x 2" over abdomen(ii) Abraison over left fore arm.(iii)
Abrasion over shoulder over posterior reason. All the
injuries were simple in nature and caused by hard and blunt
subs-stances. The Doctor has found two injuries on the
person of informant Subodh sah. Injury no.1 Abraision over
the head with blood clot size 3" X 4" and 2nd injury is
bruise over left wrist. He has given opinion that injury no. i
cannot be said to be caused by any rough substance. Both
the injuries were simple in nature. second injury was
caused by hard and blunt substance.
10. On perusal of the statement of Doctor
and the witnesses I found that all the injuries on the person
of of Manoj sah and Subodh Sah were caused by hard and
blunt substance or rough substance. They were simple in
nature. No accused tried to repeat the blow of lathi farsa
and arrow. This fact shows that the accused persons were
not having any intention to cause death to any body. There
was no circumstances to stop the accused persons from
committing the murder but they did not do so. This fact
clearly shows that the accused persons were only having
intention to assault the informant and his family members.
Therefore, the prosecution has failed to prove the charges'
u/s 307 and 324 of I.P.C. proved that the accused persons
but the prosecution has forming an unlawful assembly with
deadly weapon, and assaulted the informant Manoj Sah and
his other family members. Therefore, the prosecution has
proved the Offences u/s 147,148 and 323 of I.P.C. beyond
the shadow of reasonable doubt on the basis of statement of
witnesses Non examination of I.0. will not make any
difference on the merit of the prosecution because the
statement of all the witnesses are consistent without
contradiction and no vital contradiction has been taken
from any witness that he did not. gave such statement before
the I.0. so, the non examination of I.0. has not made any
difference on the merit of the case.
On the basis of the above discussions I came
to the conclusion that the prosecution has proved the
charge against all the accused persons u/s 147,148 and 323
of I.P.C. and I hold ail the 6 accused persons guilty u/s
147,148 and 323 of 1.P.C. Balloonds of accused persons
are cancelled and they are taken into custody. "
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15. To judge the legality of the impugned order of
conviction, I find it appropriate to reproduce the provisions of
Sections 299, 323 and 324 of I.P.C. for reappreciating the facts
and circumstances of the case, which, inter alia, are reproduced
as under:-
"299. Culpable homicide.—
Whoever causes death by doing an act
with the intention of causing death, or with the
intention of causing such bodily injury as is likely to
cause death, or with the knowledge that he is likely
by such act to cause death, commits the offence of
culpable homicide.
Illustrations
(a)A lays sticks and turf over a pit, with
the intention of thereby causing death, or with the
knowledge that death is likely to be thereby caused.
Z believing the ground to be firm, treads on it, falls
in and is killed. A has committed the offence of
culpable homicide.
(b)A knows Z to be behind a bush. B
does not know it A, intending to cause, or knowing it
to be likely to cause Z’s death, induces B to fire at
the bush. B fires and kills Z. Here B may be guilty of
no offence; but A has committed the offence of
culpable homicide.
(c)A, by shooting at a fowl with intent to
kill and steal it, kills B who is behind a bush; A not
knowing that he was there. Here, although A was
doing an unlawful act, he was not guilty of culpable
homicide, as he did not intend to kill B, or to cause
death by doing an act that he knew was likely to
cause death.
Explanation 1.— A person who causes
bodily injury to another who is labouring under a
disorder, disease or bodily infirmity, and thereby
accelerates the death of that other, shall be deemed
to have caused his death.
Explanation 2.— Where death is caused
by bodily injury, the person who causes such bodily
injury shall be deemed to have caused the death,
although by resorting to proper remedies and skilful
treatment the death might have been prevented.
Explanation 3.— The causing of the
death of child in the mother’s womb is not homicide.
But it may amount to culpable homicide to cause the
Patna High Court CR. APP (SJ) No.702 of 2012 dt.02-07-2026
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death of a living child, if any part of that child has
been brought forth, though the child may not have
breathed or been completely born.
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.
324. Voluntarily causing hurt by
dangerous weapons or means.—
Whoever, except in the case provided for
by section 334, voluntarily causes hurt by means of
any instrument for shooting, stabbing or cutting, or
any instrument which, used as weapon of offence, is
likely to cause death, or by means of fire or any
heated substance, or by means of any poison or any
corrosive substance, or by means of any explosive
substance or by means of any substance which it is
deleterious to the human body to inhale, to swallow,
or to receive into the blood, or by means of any
animal, shall be punished with imprisonment of
either description for a term which may extend to
three years, or with fine, or with both."
16. 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,
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
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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.
17. 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."
18. 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
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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.”
19.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.
20. In view of the aforesaid discussion of the factual
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and legal aspects, and upon a comprehensive re-appreciation of
the entire oral and documentary evidence available on record,
this Court finds that certain discrepancies have surfaced in the
prosecution evidence. While P.W.-3, P.W.-4 and P.W.-5 have
stated that the arrow was removed from the abdomen of the
injured at the hospital, the medical evidence does not
corroborate the said assertion, as the doctor has nowhere stated
that he had extracted the arrow from the abdomen of Manoj Sah.
There are also material inconsistencies regarding the persons
who took the injured to the hospital. Whereas P.W.-1 stated that
the father of the victims, namely Dev Narayan Sah and
Satyanarayan Sah, had taken the injured to the hospital, P.W.-4
stated that the villagers and other witnesses had taken them,
while P.W.-5 merely deposed that he himself had gone to the
hospital. It is further evident that only P.W.-5 has stated that the
accused persons had also instituted a criminal case against the
prosecution side, which indicate the existence of prior enmity
and revenge leading to lodging of a case and counter-case.
Significantly, the Investigating Officer has not been examined
depriving the defence to the opportunity to prove contradictions
in the statements of the prosecution witnesses and to test the
fairness of the investigation. Moreover, neither the alleged
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arrow nor the farsa was recovered during investigation, and the
alleged weapon of offence was never produced or exhibited
before the Court.
21. These deficiencies and inconsistencies are not of
such a nature as to demolish the core of the prosecution case or
render the ocular evidence of the injured witnesses unreliable.
The evidence of the injured witnesses inspires confidence and
stands substantially corroborated by the medical evidence
regarding the nature of the injuries sustained by them. The
omissions on the part of the Investigating Officer and the non-
recovery of the weapon are lapses in investigation, which by
themselves cannot be made a ground to discard otherwise
credible and trustworthy evidence. This Court, therefore, does
not find any illegality, perversity or infirmity in the appreciation
of evidence by the learned Trial Court while recording the
conviction of the appellants, however, appellants were released
on probation of good conduct under Section 4 of the Probation
of Offenders Act, 1958, upon their executing bonds to maintain
peace and good behaviour for a period of one year. I find that
the appellants have already been released vide order/judgment
dated 31.07.2012 and no adverse report against the appellants is
placed before this Court, they are accordingly directed to be
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released.
22. Accordingly, the present appeal is allowed.
23. The Patna High Court Legal Services Committee
is, hereby, directed to pay a sum of Rs. 10,000/- (Rupees Ten
Thousand) to Mr. Sanjay Kumar, learned Amicus Curiae, as
consolidated fee, for rendering his valuable professional service
for disposal of the present appeal.
24. 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 A.F.R.
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