Patna High Court
KARAN CHAUDHARY and ORSversusSTATE OF BIHAR
- Decided
- Disposal
- ALLOWED
- Bench
- ALOK KUMAR PANDEY
Holding
The appellate court held that the prosecution failed to establish the case beyond reasonable doubt and set aside the conviction.
Summary
The appellants, six brothers and a relative, were convicted by a Sessions Court for offences including attempt to murder, assault, and robbery under various sections of the Indian Penal Code arising from a dispute over a Rs 50 bet. The prosecution’s case relied on the statements of the victim’s family and an informant, but the witnesses gave contradictory accounts regarding the weapons used, the number of injuries, the place of occurrence, and the theft of jewellery. The medical report recorded only a single scalp injury, contradicting the claim that six assailants inflicted multiple injuries. The trial court also failed to examine the investigating officer, leaving key issues such as the exact location of the assault unresolved. The appellate court held that these inconsistencies and omissions created reasonable doubt, and that the prosecution had not proved the charges beyond reasonable doubt. Consequently, the conviction and sentences were set aside and the appeal was allowed.
Issues considered
- Whether the prosecution proved the offences under Sections 307/149, 147, 148 and 379 IPC beyond reasonable doubt.
- Whether the non‑examination of the investigating officer and the contradictory witness statements vitiate the conviction.
- Whether the medical evidence sufficiently corroborates the alleged multiple injuries.
Legislation cited
- Indian Penal Code — s. 147, 148, 149, 307, 323, 324, 379, 448
Subjects
- Criminal law
- Indian Penal Code
- Attempt to murder
- Assault
- Robbery
- Burden of proof
- Reasonable doubt
- Witness inconsistency
- Investigating officer examination
- Conviction set aside
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.772 of 2009
======================================================
1. Karan Chaudhary S/O - Late Bhuneshwar Chaudhary Vill - Masadi , P.S.-
Sultanganj , Distt - Bhagalpur
2. Satrughan Chaudhary S/O - Late Bhuneshwar Chaudhary Vill - Masadi ,
P.S.- Sultanganj , Distt - Bhagalpur
3. Raj Kumar Chaudhary S/O - Late Bhuneshwar Chaudhary Vill - Masadi ,
P.S.- Sultanganj , Distt - Bhagalpur
4. Bharat Chaudhary S/O Late Bhuneshwar Chaudhary Vill - Masadi , P.S.-
Sultanganj , Distt - Bhagalpur
5. Pandaw Chaudhary S/O - Late Bhuneshwar Chaudhary Vill - Masadi , P.S.-
Sultanganj , Distt - Bhagalpur
6. Dilip Jha S/O - Sri Jay Kant Jha Vill - Masadi , P.S.- Sultanganj , Distt -
Bhagalpur
... ... Appellant/s
Versus
STATE OF BIHAR
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Rajive Ranjan Singh, Advocate
Mr. Amit Ranjan, Advocate
For the Respondent/s : Mr. Ramchandra Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY
ORAL JUDGMENT
Date : 22-01-2026
Pursuant to order of this Court, a report has been
received from Sr. S.P., Bhagalpur which reveals that the
appellant No. 3, Rajkumar Chaudhary, has died during the
pendency of this appeal. In light of the said report, the appeal
against appellant No.3 stands abated.
2. Heard learned counsel for the appellants and
learned A.P.P. for the State.
3. The present appeal is directed against the
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judgment of conviction dated 29.08.2009 and order of sentence
dated 03.09.2009, passed by learned Additional Sessions Judge,
F.T.C. II, Bhagalpur in Sessions Trial No. 239 of 2002, whereby
and whereunder appellants Raj Kumar Chaudhary (since
deceased), Shatrughan Chaudhary, Pandaw Chaudhary, Dilip
Jha and Bharat Chaudhary have been convicted under Section-
323/149 of I.P.C., appellants Shatrughan Chaudhary, Pandaw
Chaudhary and Dilip Jha have been convicted under Section-
147 of I.P.C., appellants Karan Chaudhary, Bharat Chaudhary
and Raj Kumar Chaudhary have been convicted under Section
148 of I.P.C., appellant Raj Kumar Chaudhary has been
convicted under Section 379 of I.P.C. and appellant Karan
Chaudhary has been convicted under Section-307/149 of I.P.C.
Appellants Raj Kumar Chaudhary, Shatrughan Chaudhary,
Pandaw Chaudhary, Dilip Jha and Bharat Chaudhary have been
sentenced to undergo R.I. for six months each under Section-
323/149 of I.P.C., appellants Shatrughan Chaudhary, Pandaw
Chaudhary and Dilip Jha have been sentenced to undergo R.I.
for six months each under Section-147 of I.P.C., appellants
Karan Chaudhary, Raj Kumar Chaudhary and Bharat
Chaudhary have been sentenced to undergo R.I. for six months
each under Section-148 of I.P.C., appellant Raj Kumar
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Chaudhary has been sentenced to undergo R.I. for one year
under Section 379 of I.P.C. Appellant Karan Chaudhary has
been sentenced to undergo R.I. for three years and a fine of
Rs.3000/- under Section-307/149 of I.P.C. and, in default of
payment of fine, he has been directed to further undergo R.I. for
three months. All the sentences have been directed to run
concurrently.
4. In the Fardbayan recorded at the house of
informant/PW 5, by S.I. Madhusudan Sharma of Sultanganj
Police Station, it is asserted by the informant that on 9 th June,
1996, at about 8:30 hours, informant/PW 5 was at his gate with
the injured brother Arvind Kumar Saini/PW 8. In the meantime,
Bharat Chaudhary/appellant No.4 is stated to have come from
eastern side. It is asserted by informant/PW 5 that the injured
brother of informant, namely Arvind Kumar Saini/PW 8,
proceeded towards the road for demanding money from
appellant Bharat Choudhary/appellant No. 4. It is asserted by
the informant that the there was a bet of Rs. 50/- each between
appellant Dilip Jha and injured Arvind Kumar Saini/PW 8 as to
who would be the Prime Minister. It had also been stated by the
informant that the brother of informant, Arvind Kumar
Saini/PW 8 and Bharat Chaudhary (appellant No. 4) are said to
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have gone near the house of Bisheshwar Yadav (not examined),
for receiving the money from appellant Bharat Chaudhary
(appellant No. 4). According to PW-5/informant, Bharat
Chaudhary (appellant No. 4) called his brothers upon which
appellants Raj Kumar Chaudhary, Satrughan Chaudhary alias
Karuwa Chaudhary, Karan Chaudhary and Pandaw Chaudhary
are said to have reached at that very place and started assaulting
Arvind Kumar Saini/PW-8, with kicks and slaps. It is further
stated that informant, PW-5, having heard the same, reached
there where Narad Yadva, PW-2, also reached and tried to save
brother of the informant by taking the informant's brother inside
the house. It is further alleged that informant, PW-5, thereafter
brought his brother, PW-8, to his house, who was crying in pain
and it is further alleged that after twenty minutes, Bhart
Chaudhary, armed with an axe, Raj Kumar Chaudhary having a
country-made pistol, Shatrughan Chaudhary @ Karua, Pandaw
Chaudhary, both having lathi and Karan Chaudhary, armed with
Khanti, Dilip Jha, armed with lathi came there and all the
appellants are alleged to have entered inside the room looking
for Arvind Kumar Chaudhary. The informant is said to have
made an effort to stop them, but on account of fear, he was not
able to do so. The appellant Dilip Jha is alleged to have
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exhorted others to assault. On the exhortation of said appellant,
Bharat Choudhury inflicted axe blow on the waist of
informant's brother, whereas appellants Pandaw Chaudhary,
Karua Chaudhary (Shatrughan Chaudhary) and Dilip Jha started
assaulting with lathi. Appellant Karan Chaudhary is said to
have inflicted Khanti blow on the head of Arvind Kumar Saini
with intention to kill, due to which he was besmeared with
blood and became unconscious and accused persons are said to
have snatched away the necklace and earring of the wife of his
brother and fled away. The informant, with other family
members, is said to have rushed Arvind Kumar Saini to
Sultanganj Referral Hospital for treatment. It is also asserted
that Shankar Pandey/PW-3, Nargis Yadav/PW-7 and Binod
Yadav/PW-1 are said to have witnessed the alleged occurrence.
In the referral hospital, the condition of Arvind Kumar Saini
started deteriorating upon which all are said to have taken him
to Bhagalpur, when doctor had advised at Bhagalpur to go to
Patna for treatment. When his condition was not improving, the
family members of informant are said to have taken the injured
to Patna. He did not give statement on 14th June, 1996 due to the
said reason. Injured Arvind Kumar Saini/PW-8 and his wife
Mina Devi/PW-6 are stated to be at Patna where injured Arvind
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was being treated. It is asserted by the informant that they
would give their statement after returning from Patna and
informant/PW5 has categorically stated that injured Arvind
Kumar Saini/PW-8 was being treated at PMCH, Patna.
5. On the basis of fardbeyan of the informant,
Sultanganj P.S. Case No. 110 of 1996 was registered under
sections 147, 148, 149, 323, 324, 307, 448 and 379 of IPC.
Investigation started and after completion of investigation,
charge-sheet was submitted against the appellants accordingly.
Cognizance was taken on 10-10-1996 under Sections 147, 148,
149, 307, 379, 323, 324, and 448 IPC. and the case was
committed to the court of sessions on 14-3-2002. Thereafter, the
learned Court of Sessions framed charges under sections
307/149, 148, 147 and 379 of IPC.
6. In order to bring home guilt of the accused
persons, prosecution has examined all together 10 witnesses.
P.W. 1 Binod Yadav, P.W. 2 Narad Yadav, P.W. 3 Shankar
Pandey, P.W. 4 Urmila Devi, P.W. 5 Manoj Kumar
Saini(informant), P.W. 6 Mina Devi, P.W. 7 Nargis Yadav, P.W.
8 Arbind Kumar Saini, P.W. 9 Dr. Ganesh Mahto and P.W. 10
Md. Nishar.
7. Prosecution has produced following
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documentary evidence on record:-
Exhibit-1: Signature of informant/P.W. 5 and
Shankar Pandey (without objection)
Exhibit-2: Injury report of Arbind Kumar
Exhibit-2/1: Supplementary injury report of Arbind
Kumar
Exhibit-3: Fardbeyan of the informant
8. No oral or documentary evidence has been
produced on behalf of the defence. However, defence of the
appellants, as gathered from the line of cross-examination of
prosecution-witnesses as well as from the statement of the
accused/appellants under Section-313 of Cr.P.C., is that of total
denial.
9. After hearing the parties, the learned trial court
convicted the appellants and sentenced them as indicated in the
3rd paragraph of the judgment.
10. Learned counsel for the appellants has
submitted that the injury report prepared by the doctor is very
inadequate, cryptic and slipshod and it has no value in the eyes
of law. In the present case, there is allegation against the six
persons to have assaulted the injured/victim. It is further
submitted that out of six accused persons/appellants, appellant
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No. 3/Raj Kumar Chaudhary has died and appeal stands abated
with regard to him, which is already on record. As per injury
report, there is only one injury and injury report is very cryptic
as opinion stands reserved. In this way, the injury opined by
doctor is cryptic in nature and, prudently and pragmatically, it
cannot be possible that there are six assailants and there is only
one injury. Hence, the injury is not corroborated and the matter
arose on the betting for the post of Prime Minister and it was
mutually agreed that if the bet is decided in favour of particular
person, he would be awarded by Rs. 50/-. The dispute arose on
a trivial matter. The dispute arose on a trivial matter on account
of non-payment of betting amount of Rs.50 and prudently and
pragmatically, it is highly improbable that appellants had
intention to commit murder of the victim for the said petty issue
and the facts are exaggerated and statement of so called victim
is not reliable that he was assaulted by six persons and he got
only one injury. Hence, the very truthfulness of the said story
becomes doubtful. Apart from that, none of the prosecution-
witnesses has stated regarding the boundary of the place of
occurrence and I.O. has not been examined and due to non-
examination of I.O., place of occurrence is also not proved and
it is the cardinal principle of criminal law that prosecution has
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to prove the case beyond reasonable doubt. The statement of
victim suffers from infirmities as six persons are alleged to have
assaulted, inflicting one injury. The dispute arose on a petty
issue and as the I.O. was not examined, real cause of altercation
or assault has not come to the fore. In this way, the prosecution
has not proved the case beyond reasonable doubt. In the light of
aforesaid facts and circumstances of the case, the judgment of
conviction and order of sentence passed by the trial court are
not justified and legal and the same are fit to be set aside.
10.1. Learned counsel has cited the judgment of
Hon’ble Supreme Court, passed in Cr. Appeal No. 1794 of 2013
(Machindra Vs. Sajjan Galfa Rankhamb & Ors). In para-
15, it has been held as follows:-
“15. But looking at the post-mortem
report, cause of injuries was not stated nor was
any opinion formed to create independent
testimony. We would like to emphasize on the vital
role played by opinion of the expert which is
simply a conclusion drawn from a set of facts
coming to his knowledge and observation. Expert’s
opinion should be demonstrative and should be
supported by convincing reasons. Court cannot be
expected to surrender its own judgment and
delegate its authority to a third person, however
great. If the report of an expert is slipshod,
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inadequate or cryptic and information on
similarities or dissimilarities is not available in the
report of an expert then his opinion is of no value.
Such opinions are often of no use to the court and
often lead to the breaking of very important links
of prosecution evidence which are led for the
purpose of prosecution. Therefore, we are of the
considered opinion that the prosecution has failed
to prove that death was caused due to the injuries
inflicted by the recovered weapons.”
11. Learned A.P.P. for the State has submitted that
the informant is the victim of the present case and has stated
how he sustained injuries in the alleged occurrence and
injuries have also been corroborated by the doctor. Other
witnesses have also supported and corroborated the
prosecution story. Learned APP further submits that the
judgment of conviction and order of sentence passed by the
concerned court is based on the appreciation of evidence and
material available on record which is justified and legal and
no interference is required.
12. The question which arises for consideration is:-
Whether the prosecution has proved
the case under Sections-307/149, 147, 148
and 379 of I.P.C. against the appellants
beyond the shadow of reasonable doubt?
13. I have perused the impugned judgment, order
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of trial court and trial court records. I have given my thoughtful
consideration to the rival contentions made on behalf of the
parties, as noted above.
14. It is necessary to evaluate, analyze and screen
out the evidences of witnesses adduced before the trial court.
15. PW1 Binod Yadav, PW2 Narad Yadav and
PW3 Shankar Yadav, who are said to have seen the occurrence,
have not supported the prosecution-case and they have been
declared hostile. PW 7 has stated that he does not know
anything about the occurrence and police had not recorded his
statement. In this way, his evidence is of no significance.
16. PW4 Urmila Devi has stated that the
occurrence took place on 9th June, 1996, at 8:30 hours early in
the morning. She was at her house. On alarm, she came out and
saw Rajkumar, Bharat Chaudhary, Karan Chaudhary,
Shatrughan Chaudhary, Dilip Jha and Pandaw Chaudhary.
Karan was having khanti, Rajkumar was having gadasa and rest
came with lathi and they started assaulting her son, as a result of
which he fell down and after sustaining injury, he became
unconscious. The gold necklace and ear rings of Mina Devi
were snatched by Rajkumar Chaudhary and, for the purpose of
treatment, the victim was sent to Sultanganj hospital, from there
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to Bhagalpur hospital and from Bhagalpur to Patna. The
treatment continued for one month in Patna.
16.1. During the course of cross-examination, P.W.
4 has stated how the victim sustained injury and has also stated
that the reason for quarrel was the betting amount which was
not given by Dilip Jha/appellant No. 6 and Bharat
Chaudhary/appellant No.4, who is a guarantor to ensure the
payment of betting amount. When the payment was not made,
hot talk took place between the victim and Bharat Chaudhary,
and on account of said reason, the occurrence took place at the
street near the house of Bharat Chaudhary. She has further
stated that when her son became unconscious, no one had
assaulted.
17. From perusal of evidence of P.W. 4 it is evident
that accused Rajkumar was having gadasa, but in the initial
version of prosecution-story of informant/P.W.5., it is stated that
accused Rajkumar was having a country-made pistol. Hence,
the statement of P.W. 4 on the point of holding gadasa is quite
divergent from the initial version of prosecution-story. On the
point of place of occurrence also the statement of P.W. 4 is
divergent as she has stated during cross-examination that the
victim was assaulted near the house of Bharat Chaudhary, but in
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the initial version of prosecution-story it is stated that the victim
was assaulted first assaulted near the house of Bisheshwar
Yadav and again at the house of the informant and P.W. 6 has
stated that the victim was dragged out of the house and then
assaulted by the accused persons. On the point of snatching
gold necklace and ear rings of Mina Devi/P.W.6, the statement
of P.W.4 is quite divergent from the initial version of
prosecution-story. In the initial version of prosecution-story, it is
stated that the accused persons snatched the gold necklace and
ear rings of Mina Devi/P.W.6 but P.W. 4 has stated that
appellant Rajkumar snatched the gold necklace and ear rings of
Mina Devi/P.W.6. The statement of P.W.4 is also divergent
from the statement of P.W.6 as P.W.6 has stated that Rajkumar
and Shatrughan entered the house and snatched her gold
necklace and ear rings. In this way, the statement of P.W. 4 is
full of infirmities, inconsistencies and contradictions.
18. PW5/Manoj Kumar Saini is the informant. He
has asserted that occurrence took place at 8:30 A.M., early in
the morning on 9th June 1996. He was sitting along with his
younger brother Arvind Kumar Saini/victim. He has stated that
his brother Arvind Kumar Saini/PW8 was demanding the bet
amount of Rs.50/- from Bharat Choudhary. The bet was on the
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sole issue whether Mr. Atal Bihari Bajpayee would be Prime
Minister or not. The bet was decided in favour of his
brother/victim. He has also stated that PW8/victim came with
Bharat Chaudhary near the house of Bisheshwar Yadav. Bharat
Chaudhary called his brothers, who assaulted by fist. Narad
Yadav/PW2 had saved the victim. The informant and others
called P.W.8/injured brother at his house and after 20 minutes,
Bharat, Karan, Raj Kumar, Satrughan, Pandaw and Dilip came.
Bharat was having an axe, Karan was having a khanti,
Rajkumar was having country-made pistol and Shatrughan was
having a lathi. Karan is alleged to have assaulted by means of
khanti upon the head of P.W.8/victim, as a result of which P.W.
8/victim became unconscious after falling. Bharat is alleged to
have assaulted upon the waist of P.W.8/victim by means of an
axe. Shatrughan and Dilip Jha are alleged to have assaulted by
means of lathi. On raising alarm, people came and P.W.8/victim
was rushed to Sultanganj hospital, from Sultanganj to
Bhagalpur, and from Bhagalpur to Patna. He was finally
hospitalized in Patna. Informant and Shankar put their
signatures on the fardbeyan (Exhibit-1).
18.1. During cross-examination, the informant has
reiterated the motive behind occurrence. He has stated that the
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payment of amount of betting was denied by Bharat upon which
occurrence took place. He has further stated that the injury was
found all over the body. In this way, his statement on the point
of number of injuries is divergent with the finding of the doctor
who has found only one injury on the injured/victim.
19. From perusal of evidence of P.W. 5/informant,
it is clear that the informant has stated that Raj Kumar was
having a country-made pistol, but P.W. 4 has stated that Raj
Kumar was having a gadasa. P.W. 8 at one point has stated that
Raj Kumar was having a pistol, but at another place he has
stated that Raj Kumar and others assaulted with lathi. Hence,
the manner of assault and the description of weapon varies in
the statements of P.W.5, P.W. 4 and P.W. 8. The statement of the
informant on the point of place of treatment of the victim is
quite divergent with the statements of P.W.6 and P.W.8/victim as
P.W.6 has stated that her husband was taken to Government
Hospital, but no treatment was given there and the victim was
taken to the clinic of Dr. R.P. Chaudhary where he was treated
and P.W.8/victim has stated that he was treated in the Ganesh
Nursing Home for 15 days and after 15 days he lived in a rental
house for further treatment. The statement of P.W.5/informant
on the point of number of injuries is divergent with the finding
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of the doctor as the informant has stated that victim was
assaulted all over his body but the doctor has found only one
injury on the injured/victim.
20. PW6/Mina Devi has stated that the incident
took place at 8:30 A.M., early in the morning on 9 th June 1996.
She has further stated that she was inside her house. A quarrel
had taken place between her husband/victim and Raj Kumar
Chaudhary and Bharat Chaudhary and talk was going on
regarding the same. Meanwhile, Bharat and Raj Kumar were
shouting to drag the victim out of the house to kill him. Bharat
having an axe, Rajkumar having a pistol, Shatrughan, Dilip and
Pandaw having lathi and Karan having khanti came there and
dragged the victim out of the house. Thereafter, Bharat
assaulted on the waist of the victim with the wooden portion of
the axe, Shatrughan, Karan and Dilip assaulted the victim with
lathi and Karan assaulted by means of khanti on the head of the
victim, as a result of which blood started oozing and the victim
became senseless. On raising alarm, no one ventured to come to
his rescue. Raj Kumar and Shatrughan entered the house and
took away the gold ear rings and necklace and fled away.
Victim was taken to Sultanganj hospital for treatment and from
Sultanganj he was referred to Bhagalpur and from Bhagalpur to
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Patna.
20.1. During cross-examination, P.W. 6 has stated
that a bet of Rs.50/-was entered between her husband and Dilip
on the issue as to whether Bajpayeeji would be the Prime
Minister or not. Her husband claimed that Bajpayeeji would be
the Prime Minister whereas Dilip claimed that Bajpayeeji
would not be the Prime Minister. Her husband demanded the
money upon which a quarrel took place followed by the assault.
However, she has stated that she had not counted the number of
blows for assaulting her husband. She has further stated
Rajkumar and Shatrughan entered the house and snatched her
gold necklace and ear rings. She has further stated that her
husband was taken to Government Hospital, but no treatment
was given there and the victim was taken to the clinic of Dr.
R.P. Chaudhary where he was treated.
21. From perusal of evidence of P.W. 6, it is
evident that the statement of P.W. 6 is quite divergent from the
initial version of prosecution-story on the point of snatching
gold necklace and ear rings as she has stated that appellants Raj
Kumar and Shatrughan entered the house and took away the
gold ear rings and necklace whereas in the initial version of
prosecution-story it is stated that the appellants snatched the
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gold necklace and ear rings and fled away. Further, P.W.6 has
stated that the victim was not treated at Government Hospital,
Sultanganj rather he was treated in the clinic of Dr. R.P.
Chaudhary, but the said statement is quite divergent with the
initial version of prosecution story wherein it is stated that after
the occurrence, Arvind Kumar Saini/injured was rushed to
Sultanganj Referral Hospital for treatment and when the
condition of Arvind Kumar Saini started deteriorating, he was
taken to Bhagalpur, where the doctor had advised to go to Patna
for treatment. The statement of P.W. 6 is also divergent with the
statement of P.W.8/victim as P.W./8/victim has stated that he
was treated in the Ganesh Nursing Home for 15 days and,
therefore, police had not recorded his statement and after 15
days he lived in a rental house for further treatment.
22. P.W. 8/Arvind Kumar Saini is the victim of the
present case. He has stated that the occurrence took place on
09.06.1996 at 08:30 A.M. He was sitting at his door with the
informant Manoj Kumar Saini. In the meantime, Bharat
Chaudhary came from eastern side. He(victim) demanded the
betting money as he was the winner of the bet which was
entered on the issue as to who would be the Prime Minister
either Bajpayee or Devegoda. On such demand, Bharat
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Chaudhary took him near the house of Bisheshwar Yadav and
called his brothers. Raj Kumar, Shatrughan and Karn came
having lathi and started assaulting with lathi, fists and slaps.
Upon hearing the commotion, village people gathered there and
Narad saved him by taking him to his (Narad’s) house. The
victim was narrating the incident to his wife. In the meanwhile,
Bharat armed with an axe, Raj Kumar Yadav, Shatrughan and
Dilip Jha armed with lathi, Karan armed with khanti came and
assaulted the victim. Upon commotion, several people gathered
there but no one dared save him. Bharat assaulted with axe on
victim’s waist, Pandaw, Raj Kumar, Dilip and Shatrughan
assaulted with lathi all over the body and blood started oozing.
He was assaulted for ten minutes. The victim fell down and
became senseless. His family members took him to Sultanganj
Referral from where he was taken to Bhagalpur and from
Bhagalpur to P.M.C.H., Patna where he was treated. He
regained his sense after 36 hours and his statement was
recorded after a month.
22.1. During cross-examination, P.W.8 has stated
that he and Dilip Jha had deposited money in favour of
appellant Bharat Chaudhary. Victim was claiming that
Bajpayeeji would be the Prime Minister whereas Dilip was
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claiming that Devegoda would be the Prime Minister. Bharat
was not giving the money as deposited in favour of Bharat.
When the victim demanded the money, Bharat called his
brothers and they started assaulting the victim. He has further
stated that he received injuries on whole part of body. He has
further stated that all the family members, including wife,
mother and brother, raised alarm, but other family members did
not sustain injury. He has stated that he was being assaulted
approximately for ten minutes. He was in the Ganesh Nursing
Home for 15 days and, therefore, police had not recorded his
statement and after 15 days he lived in a rental house for further
treatment.
23. From the perusal of statement of P.W. 8, it is
clear that the dispute arose on account of the demand of dues
amount of betting money which was decided in favour of the
victim, but the statement of victim regarding the manner of
occurrence is totally inconsistent with the initial version of
prosecution-story. In the initial version of prosecution-story, the
victim was first assaulted by kicks and fists and thereafter by
weapons like lathi, axe and khanti, but while adducing his
evidence before the Court P.W.8 has stated that appellants came
with lathi and assaulted on his head. The statement of victim is
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quite inconsistent on the point of blows inflicted by the
appellants and description of arms. On the point of treatment,
the statement of victim is quite divergent with the initial version
of prosecution-story. He has stated that he was treated in
Ganesh Nursing Home and after that he took a private
accommodation for treatment which finds no place in the initial
version of prosecution-story and the occurrence took place on
09.06.1996, but fardbeyan was recorded on 14.06.1996 and date
of registration of F.I.R. is 15.06.1996 and no plausible reason
has been given for the delay and the reason as stated in initial
version of prosecution-story is just to suit the prosecution-case.
The injury report of victim indicates only one injury and where
opinion of the doctor has been kept reserved. The very
allegation of assaulting by six appellants is without having any
substance so far as number of injuries, as indicated by doctor,
according to which there is only one injury.
24. P.W.9/Dr. Ganesh Mahto has stated that on
09.06.1996, he was posted at Referral Hospital, Sultanganj as a
Medical Officer and on 02.09.1996, he was also posted there in
the same capacity. He further stated that on 09.06.1996, he
examined Arbind Kumar Saini and found following injuries on
his body:-
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(I) Sharp Cutting injury 3 inch x ¼ inch x ½ inch
on the right side of the scalp head, profusely bleeding caused by
sharp cutting weapon.
Nature of Injury :- Opinion reserved for the x-ray
A.P. and lateral view of the scalp. Patient is referred to
J.L.N.M.C.&H., Bhagalpur. Patient was brought in semi-
conscious stage but during treatment for half an hour, the
patient become unconscious. This injury report is in his pen and
signature. It is marked as Ext-2.
(iii) On 02.09.1996 final injury report of the above
named injured was written by him. According to clinical feature
of Sri Arbind Kumar Saini, vomiting, haematoma on the right
side of the temporal part of brain and dangerous to life.
Nature of Injury:- It may be grievous injury by
sharp cutting weapon. It is also in his pen and signature. It is
marked as Ext.-2/1. During the course of cross-examination, he
has stated that after examining the patient on 09.06.1996, he
referred the patient for further treatment at J.L.N.M.C.H,
Mayurganj, Bhagalpur and the patient was discharged from the
referral Hospital, Sultanganj. The injury of the patient was
stitched on 09.06.1996 by him. No x-ray report of the patient
was received by him. He further stated that he couldn’t say that
Patna High Court CR. APP (SJ) No.772 of 2009 dt.22-01-2026
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the patient was admitted at J.L.N.M.C.H., Mayurganj,
Bhagalpur or not. On 02.09.1996, neither the patient was
produced before him nor any paper of treatment of patient at
J.L.N.M.C.H., Mayurganj, Bhagalpur was received by him then
on the basis of his previous injury report (Ext-II), he issued the
injury-report (Ext.2/1) dated 02.09.1996 at his own instance. He
has denied the suggestion that out of way, he issued 2 nd injury
report when the injured was not under his control and in the
collusion of the patient, he issued wrong injury report.
25. PW10/Md. Nisar has identified the fardbeyan
to be in the writing and signature of the SI Madhusudan
Sharma, o/c Sultanganj P.S. and the same stands marked as
Ext.3. He has also identified the signature of SI Madhusudan
Sharma, o/c Sultanganj on the formal FIR and the same stands
marked as Ext.1/A. He further stated the Bharat Mishra was the
Investigating Officer of the present case who put his signature
on the charge-sheet which he identifies and the same stands
marked as Ext.1/B. During the course of cross-examination, he
has stated the above mentioned exhibit was not written by him.
He further stated the he has no knowledge regarding the
incident. Hence, his evidence is of no significance.
26. Apart from that, the Investigating Officer of
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this case has not been examined who is the material witness on
the point of identifying the place of occurrence.
27. In Behari Prasad Vs. State of Bihar reported
in (1996) 2 SCC 317, the Hon’ble Supreme Court held that
though non-examination of the Investigating Officer may not
always be fatal where it causes prejudiced to the accused, it
becomes a significant infirmity, as observed in the judgment
which reads as under:-
"We may also indicate here
that it will not be correct to contend
that if an Investigating Officer is not
examined in a case, such case should
fail on the ground that the accused
were deprived of the opportunity to
effectively cross examine the
witnesses for the prosecution and to
bring out contradictions in their
statements before the police. A case of
prejudice likely to be suffered by an
accused must depend on the facts of
the case and no universal straight
jacket formula should be laid down
that non examination of investigating
Officer per se vitiates a criminal trial.
These appeals, therefore, fail and are
dismissed. The appellants who have
been released on bail should be taken
into custody to serve out the
sentence."
Applying this principle to the present matter, this
Court finds that the omission to examine the Investigating
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Officer has, in fact, caused serious prejudice to the defence. The
prosecution version suffers from contradictions and omissions
in the statements of the witnesses and the only person who
could have clarified or explained such contradictions was the
Investigating Officer.
The failure to examine the Investigating Officer
also means that the place of occurrence has not been duly
established. At this point, it would be relevant to take note of
the decision passed by the Hon'ble Supreme Court in the case of
Syed Ibrahim versus State of Andhra Pradesh, reported in
(2008) 10 SCC 601, wherein it has been held that "when place
of occurrence itself has not been established, it would not be
proper to accept the prosecution side.
28. From the perusal of evidence of prosecution-
witnesses, it is clear that PW1 and PW3, who are said to have
seen the occurrence, have not supported the prosecution-case at
the time of adducing evidence before the Court and they have
been declared hostile. PW2/Narad Yadav, who is said to have
saved the victim, has also not supported the prosecution case at
the time of adducing evidence before the Court and has been
declared hostile. PW 7 has stated that he does not know
anything about the occurrence and police had not recorded his
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statement. In this way, his evidence is of no significance. PW 9
has proved only one injury, though in initial version of
prosecution story, there is allegation of assault against six
persons, and in absence of X-ray A.P. and lateral view of the
scalp, no definite finding regarding the nature of injury has been
given by the doctor/P.W. 9. Further, Bisheshwar Yadav has not
been examined, though the PO is stated to be near the house of
Bisheshwar Yadav. The dispute arose on a trivial matter on
account of non-payment of betting amount of Rs.50 and
prudently and pragmatically, it is highly improbable that
appellants had intention to commit murder of the victim for the
said petty issue. The statement of P.W. 4 on the point of holding
gadasa by Raj Kumar Chaudhary is quite divergent from the
initial version of prosecution-story as well as the statements of
other prosecution-witnesses. The FIR has been belatedly lodged
after five days of the occurrence for which no plausible
explanation has been given. PW4, PW5 and PW6 are the family
members of the victim/injured. No independent witness has
supported the case of prosecution. There is no seizure of any
weapon. P.W.8/injured has stated that he was treated in the
Ganesh Nursing Home for 15 days and, therefore, police had
not recorded his statement and after 15 days he lived in a rental
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house for further treatment, but his version on the said point is
divergent from the initial version of prosecution-story and is not
supported by any of the prosecution-witnesses. In the initial
version of prosecution-story, accused persons/appellants are
said to have snatched away the gold ear rings and necklace of
the wife of informant’s brother/P.W. 6, but P.W. 6 while
adducing evidence before the Court has specifically stated that
accused Rajkumar and Shatrughan snatched gold ear rings and
necklace after entering into the house and P.W.4 has stated that
it was Rajkumar who snatched the gold necklace and ear rings.
In this way, on the point of snatching gold ear rings and
necklace, the statement of informant/P.W. 5 is quite divergent
with the statement of P.W. 6. Apart from that, none of the
prosecution-witnesses has stated regarding the boundary of the
place of occurrence and as the Investigating Officer has not
been examined in the case, the appellants have been
prejudiced as relevant contradiction in evidence of
prosecution witness could not be taken and due to non-
examination of I.O., place of occurrence could not be proved.
29. From the perusal of record, it is evident that
there is inconsistency regarding weapons carried by accused
persons/appellants as P.W. 5 has stated that Rajkumar was
Patna High Court CR. APP (SJ) No.772 of 2009 dt.22-01-2026
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having pistol, P.W. 4 has stated that Rajkumar was having
gadasa and there is no clear assertion of pistol at first stage in
the statement of P.W.8. There is contradiction on the crucial
fact whether Rajkumar was holding firearm or sharp weapon.
In this way, the statements of P.W. 5, P.W. 4 and P.W. 8 are
totally contradictory upon holding of either firearm or sharp
weapon by appellant Rajkumar. Hence, there are
inconsistencies in the statements of P.W. 5, P.W.4 and P.W. 8
regarding the weapon carried by Rajkumar.
30. The manner of assault at the beginning is
mutually inconsistent as it is evident from the fardbeyan that
first assault was made by kicks and slaps and P.W. 8/victim
has stated that accused came with lathi even at first stage. In
this way, manner of assault at beginning is mutually
inconsistent between the evidence of P.W. 5 and P.W.8
regarding initial assault. P.W. 5 has stated that injury was all
over the body, but P.W. 8 has stated that he was assaulted for
ten minutes and he was assaulted by several persons and P.W.
9/doctor found only one sharp cut injury on the scalp. In this
way, there is major contradiction between ocular evidence
and medical evidence and the statement of prosecution-
witnesses P.W. 5 and P.W.8 are neither convincing nor
Patna High Court CR. APP (SJ) No.772 of 2009 dt.22-01-2026
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trustworthy in light of the fact that there are six assailants and
there is only one injury though there was allegation of assault
by six persons with axe, khanti and lathi and medical
evidence records only one sharp cut injury and no injury by
hard and blunt substance which makes the prosecution
version highly improbable and exaggerated. Inconsistency
regarding place of occurrence is found in the evidence of P.W.
5 as he has stated that assault took place near the house of
Bisheshwar Yadav, but later he has stated that assault took
place inside the informant’s room. P.W. 4 has stated that the
assault took place on street near the house of Bharat
Chaudhary and P.W. 6 stated that victim was dragged out of
the house. In this way, place of occurrence keeps shifting and
it is not firmly established. In this way, statements of P.W. 5,
P.W. 6 and P.W. 4 are neither trustworthy nor convincing.
There is inconsistency regarding medical treatment also as
P.W. 9/doctor has stated that he referred the patient to
Bhagalpur and he issued supplementary injury report after
nearly three months, without examining the patient again.
Hence, medical opinion itself becomes procedurally week
and unreliable. There is inconsistency regarding delay in
lodging the F.I.R. as the occurrence took place on 09.06.1996,
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fardbeyan was recorded on 14.06.1996 and F.I.R. was lodged
on 15.06.1996 and there is no proper or plausible explanation
as to why the statement of the informant, who is not the
victim, was recorded after five days and victim claims that he
remained unconscious for 36 hours, still there is no
explanation why the statement of the victim was recorded
after a month. Delay appears manufactured and not
convincingly explained and independent witnesses, P.W. 1,
P.W.2 and P.W. 3 have not supported the prosecution-case and
they have been declared hostile and P.W.7 claims that police
never recorded his statement. It is found that the family
members have become the witnesses with contradictions
among themselves. There is inconsistency regarding the
motive as betting amount was not paid by Dilip Jha and
Bharat Chaudhary was the guarantor, as the F.I.R. is totally
silent on the point of custodian of the betting amount, P.W. 4
has not stated anything regarding custodian of betting money
and P.W.5 and P.W.8 have stated that the betting money was
deposited with Bharat Chaudhary and the versions vary on
the custodian of betting money, as is evident from the
statements of P.W. 4, P.W. 5 and P.W.8. Even motive is not
consistently narrated. There is inconsistency due to non-
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examination of Investigating Officer as there was no site plan,
no seizure of weapons and no clarification of contradictions.
31. Keeping in view the aforesaid discussion, it is
crystal clear that prosecution-witnesses do not speak in one
voice on weapon, injuries, place of occurrence, place of
treatment, motive and snatching of gold necklace and ear
rings and their statements collide rather than converge
creating reasonable doubt.
32. It is cardinal principle of criminal
jurisprudence that that the prosecution has to prove its case
beyond reasonable doubt. Hence, the contention of learned
counsel for the appellants is quite tenable and sustainable in
the light of aforesaid facts and circumstances of the case that
the prosecution has failed to prove the case beyond
reasonable doubt.
33. In the result, in my view, prosecution case
suffers from several infirmities, as noticed above, and it was
not a fit case where conviction could have been recorded. The
learned trial court fell in error of law as well as appreciation
of facts of the case in view of settled criminal jurisprudence.
Hence, impugned judgment of conviction and order of
sentence are hereby set aside and this appeal stands allowed.
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The appellants are on bail, they are discharged from the
liabilities of their bail-bonds.
34. The interlocutory application/s, if any, shall
also stand disposed of.
35. Let a copy of this judgment be transmitted to
the Superintendent of the concerned jail for compliance and
for record.
36. The records of this case be also returned to
the concerned trial court forthwith.
(Alok Kumar Pandey, J)
K.C.Jha/-
AFR/NAFR A.F.R.
CAV DATE N/A
Uploading Date 06.02.2026
Transmission Date 06.02.2026
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