Patna High Court
Mofil Sah and Ors.versusThe State Of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- SHAILENDRA SINGH
Holding
The appeal is allowed and the convictions under Sections 341 and 307 read with Section 34 IPC are set aside.
Summary
The appellants were convicted by the Sessions Court for offences under Sections 341 and 307 read with Section 34 of the IPC for allegedly assaulting an informant and his father with various weapons. The prosecution relied on the testimony of relatives of the complainant and medical reports showing only minor injuries, while the defence highlighted a nine‑day delay in FIR registration, the non‑examination of the investigating officer, and contradictions in witness statements. The trial court dismissed the defence evidence and sentenced the appellants, but the High Court found that the injuries did not corroborate the alleged use of deadly weapons and that the prosecution failed to explain injuries sustained by one accused. The Court also held that the unexplained FIR delay and suppression of the genesis of the incident warranted a benefit of doubt to the accused. Consequently, the High Court set aside the conviction and allowed the appeal, discharging the appellants from bail liabilities.
Issues considered
- Whether the prosecution proved the use of a farsa and other deadly weapons to sustain conviction under Section 307 IPC.
- Whether the injuries reported corroborate the prosecution's version of the assault.
- Whether the nine‑day delay in FIR registration and non‑examination of the investigating officer vitiate the prosecution case.
- Whether the benefit of doubt principle applies given the inconsistencies and suppressed evidence.
- Whether convictions under Sections 341 and 307 read with Section 34 IPC can be upheld in the present facts.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 107, 144
- Indian Penal Code — s. 307, 34, 341
Subjects
- assault
- attempt to murder
- common intention
- FIR delay
- benefit of doubt
- civil dispute
- evidentiary burden
- conviction set aside
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.87 of 2014
Arising Out of PS. Case No.-1 Year-2008 Thana- KUCHAIKOTE District- Gopalganj
======================================================
1. Mofil Sah, S/O Late Bhoj Sah, Resident of Village- Madhomath, P.S.-
Kuchaikote, District- Gopalganj
2. Bishwamitra Sah, S/O Late Bhoj Sah Resident of Village- Madhomath, P.S.-
Kuchaikote, District- Gopalganj
3. Pintu Sah, S/O Mofil Sah
4. Pradip Sah, S/O Bishwamitra Sah, All Resident of Village- Madhomath,
P.S.- Kuchaikote, District- Gopalganj
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Harendra Prasad Singh, Adv.
Mr. Adish Raj Singh, Adv.
For the Respondent/s : Mr. Syed Ashfaque Ahmand, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE SHAILENDRA SINGH
ORAL JUDGMENT
Date : 05-02-2026
The instant appeal has been preferred by the
appellants against the judgment of conviction dated 21.01.2014
and the order of sentence dated 27.01.2014 passed by the Court
of the learned Additional District & Sessions Judge-IV,
Gopalganj, in Sessions Trial No. 290 of 2009/91 of 2011
(arising out of Kuchaikote P.S. Case No. 01 of 2008), whereby
and whereunder the appellants have been convicted for the
offences punishable under Sections 341 and 307 read with
Section 34 of the Indian Penal Code (in short, “IPC”). The
appellants have been sentenced to undergo rigorous
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imprisonment for one month for the offence punishable under
Section 341 read with Section 34 of the IPC and to undergo
rigorous imprisonment for three years with a fine of Rs. 5,000/-
for the offence punishable under Section 307 read with Section
34 of the IPC. In default of payment of fine, they have been
directed to undergo one month’s imprisonment additionally.
Both the sentences of imprisonment have been directed to run
concurrently by the trial court.
Prosecution Story:-
2. The substance of the prosecution story, as
appearing from the FIR, is as follows:
As per the informant, on 25.12.2007 at about 2:00
P.M., he was fencing and repairing his private school near
Bathan, situated to the east of his village. At that time, the
appellants, namely, Mofil Sah, Bishwamitra Sah, Pintu Sah, and
Pradip Sah, equipped with farsa, tangi, lathi, and iron rod, came
and surrounded him and started assaulting him. The appellant
Mofil Sah inflicted a farsa blow upon him, which hit his head,
resulting in a cut injury and bleeding. On account of that assault,
he fell down, and thereafter the accused/appellant Bishwamitra
Sah inflicted a tangi blow, which hit the ankle of his right leg.
After that, upon hearing hulla, his father Binda Sah came to
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save him, but he was also assaulted by the appellant Pintu Sah
with an iron rod, resulting in injury to him. Thereafter, all the
remaining accused persons assaulted him and his father with
lathi and iron rod. As per the informant, on account of the
assault, his father sustained injuries, and by then several
villagers gathered and saved them.
2.1. The informant, Saheb Lal Sah (PW-6),
recorded his fardbeyan at Sadar Hospital, Gopalganj, on the
same day of the alleged occurrence at 16:15 hours. The same
was recorded by Sub-Inspector A.K. Singh, posted at Town
Police Station, Gopalganj. On that basis, the formal FIR bearing
Kuchaikote P.S. Case No. 01 of 2008 was registered for the
offences punishable under Sections 341, 323, and 307 read with
Section 34 of the IPC, which set the criminal law in motion, and
the investigation was started.
3. After completion of the investigation, the police
submitted a charge-sheet against all the named accused persons,
who are the appellants herein, for the same offences as
mentioned in the FIR. After taking cognizance, the concerned
Magistrate, finding the case to be triable by the Court of
Sessions, committed the same to the Sessions Court.
4. The appellants were charged only for the
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offences punishable under Sections 341 and 307 read with
Section 34 of the IPC. The charges were read over and
explained to the appellants by the trial court, to which they
pleaded not guilty and claimed to be tried.
5. During the trial, in ocular evidence the prosecution
examined the following eight prosecution witnesses :-
PW-1 Bhagawat Ram A relative of both the parties
PW-2 Paspati Devi A relative of the prosecution party and claimed
herself as an eyewitness
PW-3 Binda Sah Injured witness of the prosecution and father
of the informant
PW-4 Radha Devi A relative of the prosecution party and claimed
herself as an eyewitness
PW-5 Anup Kumar Soni A relative of the prosecution party and claimed
himself as an eyewitness
PW-6 Saheb Lal Sah The informant
PW-7 Dr. Raisul Azam The Doctor who medically examined the
injured persons
PW-8 Kanhaiya Sah A formal witness
6. In documentary evidence, the prosecution proved
and exhibited the following documents, which are as under :-
Ext-1 The signature of the informant on the fardbeyan
Ext-2 The injury report of Saheb Lal Sah (informant)
Ext-2/1 The injury report of Binda Sah
7. After completion of the prosecution evidence, the
statements of the appellants were recorded by the trial court,
giving them an opportunity to explain all the material
circumstances appearing against them from the prosecution
evidence, which were denied by them. While recording their
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statements, the appellants claimed themselves to be innocent;
however, the appellant Mofil Sah did not take any specific
defence in his statement. Though the appellant Bishwamitra Sah
took the specific defence that he had been falsely implicated, the
appellant Pintu Sah took the plea that there was a counter case,
and the appellant Pradip Sah took the plea that there was a land
dispute between the parties, for which there was also litigation.
8. The appellants did not give any ocular evidence in
their defence, though they produced and exhibited the following
documents in their defence :-
Ext-A The certified copy of the FIR pertaining to Kuchaikote P.S.
Case No. 216 of 2007
Ext-B The certified copy of the chargesheet submitted in connection
with Kuchaikote P.S. Case No. 216 of 2007
Ext-C The certified copy of the plaint of Title Suit No. 489/2007
running in between both the parties.
Ext-A/1 The certified copy of the FIR pertaining to Kuchaikote P.S.
Case No. 215 of 2007
Ext-B/1 The certified copy of the chargesheet submitted in connection
with Kuchaikote P.S. Case No. 215 of 2007
Ext-D The deposition’s copy of one Rita Kumari, daughter of the
appellant Bishwamitra Sah, recorded in Sessions Trial No.
24/2010
Submissions on behalf of the appellants:
9. Mr. Harendra Prasad Singh, learned counsel
appearing for the appellants, has argued that all the prosecution
witnesses, except the doctor (PW-7) and the formal witness
(PW-8), are relatives of the prosecution party and were highly
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interested in convicting the appellants on account of
longstanding enmity existing between both the parties due to a
civil dispute. In this regard, sufficient documentary evidence by
way of defence evidence was produced before the trial court by
the appellants, but the same was not considered in the right
perspective by the trial court. As per the evidence of the material
witnesses of the prosecution, 10–15 villagers, who were
independent persons, gathered at the time of commission of the
last part of the occurrence, but none of them was examined as a
witness by the prosecution.
9.1. Learned counsel further submits that, as per the
allegation made in the FIR, appellant Mofil Sah inflicted a farsa
blow on the informant, resulting in a cut injury on his head, but
on the scalp of the informant only an abrasion was found by
PW-7, which falsifies the allegation of use of such a fatal
weapon, i.e., farsa. Though the informant sustained one sharp
cut injury on his right leg but the same was opined to be simple
in nature and not dangerous to life. However, both the said
injuries of the informant do not support the manner of assault as
alleged in the fardbeyan.
9.2. As far as the injured Binda Sah is concerned, on
his person only two simple injuries in the nature of scratches
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were found, whereas, as per the allegation, the appellants, being
four in number, assaulted him and the informant by means of
farsa, tangi, lathi, and iron rod, which does not get corroboration
from the nature of the injuries of Binda Sah and also falsifies the
manner of assault as revealed by the informant in his fardbeyan.
It has been further submitted that, as per the prosecution, the
informant recorded his fardbeyan on 25.12.2007 at 16:15 hours
at Sadar Hospital, Gopalganj, but the formal FIR was registered
on 03.01.2008 after a delay of nine days, regarding which no
explanation was given by the prosecution before the trial court.
Further, the investigating officer was not examined, so the
appellants were deprived of their valuable right to cross-
examine the investigating officer regarding the said inordinate
delay of nine days in registration of the formal FIR, which casts
a serious doubt on the credibility of the FIR.
9.3. Learned counsel has further argued that, in fact,
the prosecution party badly assaulted appellant Bishwamitra
Sah, for which Kuchaikote P.S. Case No. 216 of 2007 was
registered on the same day of the alleged occurrence by
recording the fardbeyan at the Primary Health Centre,
Kuchaikote, Gopalganj. In the said case, the informant of the
present case, his father, and others were charge-sheeted for the
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major offence under Section 307 of the IPC and other offences.
A copy of the charge-sheet was filed before the trial court as
Exhibit-B.
9.4. Lastly, learned counsel has submitted that in the
prosecution story described in the fardbeyan of the informant,
the alleged occurrence was shown in a manner different from
the actual occurrence, and the real story was concealed by the
informant. A false story was projected to implicate the
appellants with false allegations with an intention to create
pressure upon them on account of the civil dispute pending
between the parties.
Submissions made on behalf of the State:-
10. Learned APP appearing for the State has
submitted that the testimonies of PW-1 and PW-2 clearly show
that they were eyewitnesses to the alleged occurrence, and the
relevant part of the occurrence was supported by them in their
examination-in-chief. Both remained consistent in their stand
during cross-examination with regard to the relevant facts of the
prosecution story narrated by them. PW-3, the father of the
informant and an injured witness, also supported the prosecution
story, and the allegation of assault made by the informant gets
corroboration from the injury reports of this witness and the
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informant.
10.1. From the perusal of the injury report of the
informant, it is clearly evident that a sharp-edged weapon was
used in assaulting the informant, which corroborates the
allegation of use of tangi in the assault. As far as the motive of
the appellants in assaulting the informant and his father is
concerned, the defence taken by the appellants itself shows that
there was a civil dispute between the parties.
10.2. So far as the applicability of Section 307 of the
IPC is concerned, appellant Mofil Sah inflicted a farsa blow on
the head of the informant, and though the same resulted in a
simple injury, the intention of this appellant was to kill the
informant, which is sufficient to attract the offence under
Section 307 of the IPC. The trial court rightly convicted him for
the said offence and convicted the other appellants with the aid
of Section 34 of the IPC.
10.3. Learned APP has further submitted that the
non-examination of the investigating officer was not fatal to the
prosecution case, as the testimonies of prosecution witnesses
(PW-1 to PW-6) were sufficient to establish the place of
occurrence, which was not disputed by the accused persons
before the trial court. For proving the injuries sustained by the
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prosecution party, the medical evidence given by PW-7 was
sufficient.
10.4. The defence taken by the appellants,
particularly regarding the alleged assault on appellant
Bishwamitra Sah by the prosecution party on the alleged day
and time, is not believable and remained unproved before the
trial court; hence, no reliance can be placed upon the defence
version. As such, there is no merit in this appeal and the same is
liable to be rejected.
Consideration and Analysis:
11. I have heard both sides, perused the impugned
judgment and the evidence adduced by both sides available on
the record of the trial court, and also taken into account the
statements of the appellants. As per the prosecution story, all the
appellants were equipped with farsa, tangi, lathi, and iron rod at
the time of commission of the alleged occurrence, and appellant
Mofil Sah inflicted a farsa blow on the informant, which hit his
head resulting in a bleeding injury.
11.1. A farsa is considered to be a sharp-edged
weapon; if it is used from the sharp side, it may cause a sharp
injury, but if it is used from the blunt side, it may cause a blunt
injury. However, in view of the nature of this weapon, the
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injury, whether sharp or blunt, must be of such nature as to
indicate the use of a farsa. As per the injury report of the
informant (Ext-2), proved by the doctor (PW-7), only one
abrasion measuring ½” × ⅓” was found on the scalp of the
informant, which does not support the use of the alleged farsa
by appellant Mofil Sah.
11.2. Only two injuries were found on the person of
the informant, whereas as per the prosecution story, four persons
equipped with deadly weapons assaulted him. Thus, the number
of injuries does not corroborate the manner of assault involving
a number of weapons and several attackers as alleged. The
appellants took the defence that appellant Bishwamitra Sah was
assaulted by the prosecution party on the same day and time, for
which Kuchaikote P.S. Case No. 216 of 2007 was registered on
the basis of the fardbeyan of appellant Mofil Sah. Certified
copies of the FIR and the charge-sheet were filed and exhibited
as Exhibit-B. The police, finding the allegations in the said case
to be true, charge-sheeted the informant and others. Although
the outcome of the said trial is not on record, however, the
injury reports discussed in the said chargesheet and the
acceptance by PW-1 that appellant Bishwamitra Sah was seen
injured on the alleged day suggest that the alleged occurrence
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took place in a different manner than projected by the
prosecution. The actual manner of occurrence appears to have
been concealed, creating doubt about the prosecution’s
allegation’s credibility. It is settled position of law that when the
genesis and origin of occurrence is suppressed by the
prosecution and the injuries sustained by an accused on the
same alleged day of occurrence remain unexplained by the
prosecution then the only possible and probable course left open
is to grant the benefit of doubt to the accused. In this regard, I
would like to refer to the observation made by the Hon’ble Apex
Court in the case of Bhagwan Sahai and Anr. vs. State of
Rajasthan in Cr. App. No. 416 of 2016 and the relevant
paragraph No. 8 of the said judgment is reproduced as under :-
“8. The aforesaid view of the High
Court is devoid of legal merits. Once the Court came
to a finding that the prosecution has suppressed the
genesis and origin of the occurrence and also failed
to explain the injuries on the person of the accused
including death of father of the appellants, the only
possible and probable course left open was to grant
benefit of doubt to the appellants. The appellants can
legitimately claim right to use force once they saw
their parents being assaulted and when actually it has
been shown that due to such assault and injury their
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father subsequently died. In the given facts, adverse
inference must be drawn against the prosecution for
not offering any explanation much less a plausible
one. Drawing of such adverse inference is given a go-
bye in the case of free fight mainly because the
occurrence in that case may take place at different
spots and in such a manner that a witness may not
reasonably be expected to see and therefore explain
the injuries sustained by the defence party. This is not
the factual situation in the present case.”
11.3. Further, a civil dispute between the parties is
an admitted position, and preventive measures under Sections
107 and 144 Cr.P.C. were recommended. Multiple litigations
show longstanding enmity, and it is settled law that enmity cuts
both ways; it may motivate an offence or false implication.
11.4. Regarding the alleged assault on the
informant’s father, PW-3 stated in cross-examination that he
reached the place of occurrence 15 minutes after the incident,
whereas the informant stated that his father arrived during the
assault. This contradiction affects the credibility of PW-3’s
claim of being assaulted.
11.5. Although the fardbeyan was recorded on the
same day, the formal FIR was registered after nine days. The
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investigating officer was not examined, depriving the appellants
of the opportunity to cross-examine the investigating officer
about the reasons of said delay. The unexplained delay casts a
serious doubt on the credibility of the FIR.
Conclusion:
12. In view of the above-discussed facts and
circumstances, I am of the considered opinion that although the
informant and his father might have sustained injuries on the
alleged place, day and time but the manner of assault as alleged
does not get corroboration from the evidence. The prosecution
failed to explain the injuries sustained by appellant Bishwamitra
Sah on the same day of alleged occurrence, the non-examination
of the investigating officer proved fatal to prosecution, and the
inordinate delay in registration of the FIR remained
unexplained, which also seriously affects the case of
prosecution. Accordingly, this Court is not persuaded to affirm
the judgment of conviction. The impugned judgment of
conviction and order of sentence are set aside, and the appeal is
allowed.
13. The appellants are on bail; accordingly, they and
their sureties are discharged from the liabilities of their bail
bonds.
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14. Let the records of the trial court, along with a
copy of this judgment, be transmitted forthwith to the trial court
for necessary compliance.
(Shailendra Singh, J)
annu/-
AFR/NAFR AFR
CAV DATE NA
Uploading Date 09.02.2026
Transmission Date 09.02.2026
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