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Patna High Court

Mofil Sah and Ors.versusThe State Of Bihar

Decided
Disposal
ALLOWED

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

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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