Patna High Court
Lal Bahadur Choudhary And Anr vs State Of Bihar on 20 August, 2025
Author: Sunil Dutta Mishra
Bench: Sunil Dutta Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.183 of 2006
======================================================
1. Lal Bahadur Choudhary, son of Radha Choudhary, resident of village
Deodaha, P.S. Dinara, District- Rohtas.
2. Pramod Kumar Nonia @ Pramod Kumar Choudhary, son of Late Ram
Lakhan Choudhary, resident of village Surtapur Milki, P.S.- Dinara,
District- Rohtas.
... ... Appellant/s
Versus
State Of Bihar.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Ravi Shankar, Advocate.
Mr. Binod Kumar, Advocate.
For the Respondent/s : Mr. Anand Mohan Prasad Mehta, APP.
======================================================
CORAM: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA
C.A.V. JUDGMENT
Date : 27-08-2025
1. The present appeal has been filed on behalf of
appellants, namely, Lal Bahadur Choudhary and Pramod Kumar
Nonia @ Pramod Kumar Choudhary against the judgment of
conviction and sentence dated 22.02.2006 passed by learned
Additional District & Sessions Judge, F.T.C.-2, Buxar
(hereinafter referred to as 'Trial Court') arising out of Dhansoin
P.S. Case No.87 of 1987 in S.T. No. 315 of 1988 whereby
appellant no. 1 (Lal Bahadur Chaudhary) and appellant no. 2
(Pramod Kumar Chaudhary) both have been awarded sentence
for ten years R.I. for offence under Section 399 Indian Penal
Code, seven years R.I. for offence u/s 402 Indian Penal Code
and seven years R.I. for offence u/s 307/34 Indian Penal Code.
Patna High Court CR. APP (SJ) No.183 of 2006 dt.27-08-2025
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Appellant No. 2, Pramod Kumar Chaudhary was awarded
further three years R.I. for offence u/s 27 Arms Act. The
sentences are to run concurrently.
2. Appellant No. 2 Pramod Kumar Nonia @
Pramod Kumar Choudhary died on 15.05.2024, accordingly, his
appeal has been abated vide order dated 04.08.2025 and appeal
of Appellant no. 1 continued.
3. Heard learned counsel for the appellant no.1
and learned APP for the State.
4. The prosecution case as per the written report
of Indra Bhushan Prasad Singh, Inspector of Police, Buxar
(Sadar), Officer in-charge, Dhansoin Police Station is that on
09.11.1987
, on receiving secret information that some notorious
criminals were assembled at village Rampur with intention to
commit dacoity, he along with D.S.P., Buxar O.P. Kher (PW-2)
and with several other police personnel, proceeded to Rampur at
about 12:30 A.M., and reached at 1:30 A.M. near the village
Rampur, Nonia Tola. There, in the moonlight, they saw 8 to 10
persons sitting and talking in nearby sugarcane field. Out of
them it was heard saying that Durjanwa had gone to watch
dance, he should be called back otherwise it would be too late
for committing dacoity. At that point, one person, from the
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group proceeded towards the dance venue to call him. On seeing
the police party he asked them who they were, when the police
party replied that they are police, then someone from who were
sitting in the sugarcane field opened fire on the police party. The
police party apprehended five persons while other managed to
flee. On personal search of apprehended persons, in presence of
two witnesses, namely, Sheobachan Singh and Bans Ropan
Singh, who had come from near Tola on hearing of the firing. A
country made Rifle with loaded one cartridge was recovered
from Harbansh Bhar @ Sokha, one D.B.B.L. Gun with one
loaded cartridge from Harbansh Noniya, 16 cartridges from
Pramod Kumar Chaudhary, three wrist watches from Rambali
Chaudhary and nothing was recovered from Lal Bahadur
Chaudhary (Appellant No. 1) on their personal search. The
seizure list was prepared. The apprehended persons disclosed
that they were assembled for commission of dacoity and with
intention to cause death they opened fire on the police party.
5. On the basis of the written application, F.I.R.
was registered bearing Dhansoin P.S. Case No. 87 of 1987 and
Sudhir Kumar Verma, Officer In-charge entrusted investigation.
After investigation, charge-sheet was submitted against the
accused persons. On 06.02.1988, cognizance of offence was
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taken under Sections 399, 402, 307, 414 of the Indian Penal
Code and Section 25(b) Arms Act and case was committed to
the Court of Sessions on 23.06.1988. The aforesaid charges
were framed against accused persons on 18.12.1989 who
pleaded not guilty and claimed to be tried.
6. Haribansh Bhar, Haribansh Nonia and Rambali
Chaudhary were declared absconder and their case was
separated from the appellants herein.
7. Prosecution has examined altogether seven
witnesses (who are police personnel) in this case.
PWs Names
PW-1 Kameshwar Prasad (Officer-in-
charge of Indra Puri P.S.)
PW-2 O.P. Kher (then D.S.P. Buxar)
PW-3 Raj Bansh Singh, Officer-in-
charge of Rajpur P.S.
PW-4 Grijesh Kumar (officer-in-
charge of P.S. Karakat, Rohtas)
PW-5 Madan Pandey (Formal witness
who proved formal F.I.R.,
Exhibit-1)
PW-6 Lalita Singh (retired Dafadar)
PW-7 Sheo Narain Singh,
(Chaukidar)
As documentary evidence, only formal F.I.R. was
exhibited as Exhibit-1.
8. After prosecution evidence, the statement of the
accused persons were taken u/s 313 Cr.P.C. on 19.11.2005 who
denied the same and stated that they are innocent and committed
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no offence.
9. PW-1, Kameshwar Prasad, Officer-in-charge of
Indrapuri P.S., PW-2, O.P. Kher was then D.S.P., Buxar and PW-
4, Grijesh Kumar, Officer-in-charge of Karakat P.S. are police
personnel who claimed in their deposition before the Trial Court
that they were members of the raiding party, apprehended the
accused persons on spot and were eye-witnesses. The informant
and I.O. in the case as well as the seizure list witnesses have not
been examined by the prosecution.
10. The learned Trial Court on considering the
evidence on record given findings that:
(i) PW-1, PW-2 and PW-4 are police
personnel and government servants who are not
inimical to the accused persons, hence there is no
reason to doubt at their testimony. They claimed that
they were members of the raiding party and
apprehended the accused persons on the spot, hence,
their testimony are trustworthy and there is no reason to
disbelieve them.
(ii) It is well established that on
10.11.1987 a raid was conducted at village Rampur,
Nonia Tola, P.S. Dhansoin in the leadership of PW-2 at
about 1.30 A.M.
(iii) In spite of all efforts, rest witnesses
did not turn up for evidence. It is a very common
practice this days that the Government servants who
were transferred, they did not come to adduce their
evidence and independent witnesses did not want to
come to adduce their evidence, against the accused
persons.
(iv) The evidence of prosecution fully
established that accused persons were arrested from the
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spot and recovery of arms were made from their
possession and conversation made in between them,
which was heard by the police party shows that they
had assembled for committing dacoity and in
furtherance of that they opened fire on the raiding party
which did not hit any members of the police party.
11. The learned Trial Court on the basis of
aforesaid findings came to the conclusion that prosecution is
able to bring home charges which is levelled against accused
persons beyond all reasonable doubt, hence the appellants were
found guilty and sentenced them as stated above.
12. Being aggrieved by the said judgment of
conviction and sentence, appellants preferred the present appeal.
13. Sh. Ravi Shankar, learned counsel for the
appellant no.1, Lal Bahadur Chaudhary, submitted that the
conviction and sentence passed against the appellant no.1 is bad
in law and facts. There are serious contradictions between the
evidence of prosecution witnesses. The learned Trial Court
failed to consider that no any independent witnesses of the case
has supported the prosecution case. Further, it is submitted that
in absence of station house entry regarding alleged receiving
secret information, formation of raiding party and their
departure from police station creates serious room of doubt of
the prosecution case. Non-production of articles seized and
seizure-list prepared with regard to them in the Trial Court and
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absence to prove the same by independent seizure list witnesses
creates serious doubt in prosecution case. Learned counsel for
appellant no.1 further submitted that informant who is also I.O.
of the case having personal grudge to show the arrest of fake
criminals in a fake manner on the basis of local influential men,
who, having personal grudge against the appellant no.1, has not
been examined without any plausible reason also creates doubt
in prosecution case. It is further submitted that none of the
independent witnesses as well as material witnesses have come
forward to support the prosecution case and the witnesses who
are police personnels whose status have been held to be
interested witnesses. He further submitted that no injury was
sustained by any one and there is no report on record with
respect to any firing by any arms/gun by any expert person or
Forensic test office, and in absence thereof, the prosecution
failed to prove the case against appellant no.1 either under
Sections 399, 402 or 307 I.P.C.
14. Learned counsel for the appellant relied on the
judgment of this Court delivered in Shridhar Koeri v. State of
Bihar reported in (2000) 3 PLJR 295 to support his argument
that mere fact that accused-appellant was arrested on spot and
some articles including firearms were recovered from his
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possession would not be sufficient to prove the charge that he
had assembled for making preparation for commission of
dacoity.
15. Learned counsel further submitted that
adverse inference ought to have been drawn against the
prosecution as admittedly, the persons who were caught on the
spot were caught without any resistance or struggle from their
side. On this point, he relied upon the judgment of Hon’ble
Supreme Court in case of State of U.P. v. Punni & Others
reported in AIR 2008 SC 932; (2008) 11 SCC 153.
16. On the other hand, learned A.P.P. for the State
supported the impugned judgment of conviction and sentence
and submitted that the prosecution has proved charges against
the appellant and learned Trial Court has rightly passed the
impugned judgment of conviction and sentence and are not
liable to be interfered by this Court in this appeal. It is further
submitted that some minor discrepancies are bound to occur in
the evidence of witnesses examined by the prosecution. Further,
the prosecution witnesses are all official witnesses who are
reliable witnesses having no material contradictions appearing
in their evidence. The facts proved by prosecution witnesses
give rise to a reasonable inference of the fact that the appellant
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no.1 and other accused persons had assembled for the purpose
of committing dacoity and that in preparation for the same, they
had brought arms with them and the said inference does not
appear to have been rebutted by the appellant no.1. If the
appellant no.1 had assembled there for any other purpose, it was
within his knowledge which he could have explained, but the
appellant no.1 has not adduced any evidence to show that it was
his lawful assemblage at that place. The appellant no.1 did not
show that the object for which he had assembled was not that of
committing dacoity and therefore, his appeal should be
dismissed.
17. I have carefully perused the record and
considered the submissions advanced by the learned counsel for
the parties. At this stage, I would like to appreciate the relevant
extract of entire evidence led by the parties before the learned
Trial Court.
(i) PW-1 Kameshwar Prasad is Officer-in-Charge
of Indrapuri P.S. He deposed that, on instruction of the
Inspector, on 10.11.1987 he was present at Dhansoin P.S. and
they alongwith the armed force ASI Mudrika Singh, ASI
Girjendra Kumar Singh, they went for a raid and reached at
sugarcane field at about 1.30 AM. There, were 7 to 8 persons
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murmuring. The police party had taken position in paddy field
and heard that one person was saying that “Durjanwa had gone
to watch the dance and the time for dacoity is passing, therefore
send someone to bring back Durjan”. When one person came
out, and asked, the Inspector stated that they are police
personnel. On hearing the same gun fire had been discharged
from the sugarcane field but no bullet hit anyone. In the
meantime, many people of the village came there and five
people from the sugarcane field were apprehended. The
apprehended people disclosed their name. From Haribansh
Bhar, a rifle and a cartridges, were seized. From Haribansh
Nonia one DBBL gun, from barrel, one fired cartridge, and one
live cartridge were recovered. From Pramod Chaudhary 16
cartridges of 12 bore were recovered. From Raj Bali Chaudhary,
3 wristwatch were recovered. A seizure list was prepared. In his
cross-examination he has stated that he had no knowledge about
the accused persons and no TIP was conducted. He further
stated that the police party had encircled the sugarcane field and
taken position five minutes earlier from the firing. He was
present at 10-15 yards and from there after some distance the
DSP was present. After, the villagers arrived, the accused
persons were apprehended. He further stated that in the process
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of apprehending the accused persons, the police party has not
got any injury. The simple injury was sustained by the accused
persons. He cannot say who was talking about the dacoity, he
had no knowledge about to whom the accused had to make
dacoity.
(ii) PW-2 is O.P. Kher who was the S.D.P.O. on
09.11.1987 and has deposed that he received a secret
information from the then Inspector Indu Bhushan Prasad that
some miscreants with the intention to commit some crime are
meeting near Rampur Nonia Tola and they conducted raid with
the armed force. They reach Dhansoi P.S. at about 12.30 hour at
night and after taking Chaukidar and local officer they went to
Rampur village on foot and at about 01.30 AM they reached at
sugarcane field and beside the same there was paddy field.
Some sound was heard from the sugarcane field, thereafter torch
was flashed and a sound was heard that Durjanwa had gone to
watch the dance and the time for dacoity is passing, therefore,
send someone to bring back Durjan. He asked the Inspector
about their identity who said that they are Police, then the said
person fled away from the field, they encircled, one gunfire was
discharged on the police party. On search, five persons were
apprehended, while 8 to 9 peoples fled. The apprehended
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persons disclosed their names. On search, from Haribansh Bhar
a loaded country made rifle and the cartridges were recovered.
From Haribansh Nonia, one DBBL gun was recovered and from
barrel one fired cartridge and one live cartridge were found. One
accused person who named himself as Pramod Chaudhary from
whose belt 16 bullets of 12 bore were recovered. From Raj Bali
Chaudhary 3 HMT watches were found and from Lal Bahadur
Chaudhary (Appellant No. 1) nothing was recovered. In the
meantime villagers came there. In the presence of two witnesses
namely Bansh Ropan Singh and Shiv Bachan Singh Inspector
had made the seizure list. In his cross-examination he has stated
that Nonia Tola was situated at about 150-200 yards from the
place of occurrence near the sugarcane field. In the west side
there was open field where the dance was organized. He further
stated that Rampur and Nonia Tola is situated nearby. He had no
knowledge on which particular place the accused had
assembled. He has not asked from any person of the Rampur
Village that where the dance was organized. He has not made
sanha entry of the secret information. He further stated that after
arrest of the accused persons, the villagers came there. He
denied the suggestion that the accused persons were not arrested
on the spot and nothing was recovered from them and only for
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getting the promotion the said case was registered.
(iii) PW-3 Raj Bansh Singh has been tendered for
cross-examination.
(iv) PW-4 Girijesh Kumar also supported the
prosecution case in his deposition. In his cross-examination he
has stated that a dance program was held at about 150 yard from
the place of occurrence and 100-200 people were present there.
He further deposed that some people were arrested from the
sugarcane field and some arrested from outside. From the
accused conversation they came to know that they were
assembled for committing dacoity. He also deposed that the
sugarcane was of about 4 feet height and the accused persons
had not thrown their arms at the time of chasing them. He
denied that they have apprehended the people who were seeing
the dance.
(v) PW-5 Madan Pandey who is an Advocate
Clerk is a formal witness who exhibited Exhibit 1 (Formal
F.I.R.)
(vi) PW-6 Lalita Singh who is retired Dafadar
deposed that he does not know about the incident and he has not
given any statement before the Police.
(vii) PW-7 Sheo Narain Singh who is Chaukidar
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also deposed that he does not know anything about the case.
18. It is pertinent to note that PW-3 has been
tendered by the prosecution for cross-examination by the
defence without his examination-in-chief by the prosecution.
The procedure of tendering witness has been deprecated by the
Hon’ble Supreme Court in Sukhwant Singh v. State of Punjab
reported in (1995) 3 SCC 367 wherein it was held that after
amendment in Cr.P.C. tendering of witness for cross-
examination is not permissible.
19. In this appeal the issue which comes up for
consideration is “whether on the basis of available materials on
record the prosecution has proved the charged against the
appellant no. 1 beyond reasonable doubt or not?”
20. In the present case, the informant Indra
Bhushan Prasad Singh, Inspector of Police, Buxar (Sadar) on
whose written report the case has been registered and who had
received the information on 09.11.1987 with respect to assembly
of criminal with intention to commit dacoity has not been
examined by the prosecution without any satisfactory
explanation. He was the most material witness who proceeded
to place of occurrence, arrested the accused persons on spot and
prepared the seizure-list. None examination of the informant is
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fatal for the prosecution case. The informant who led the
foundation on which the prosecution case is based and was the
architect of the facts of the case has not been examined. This is
a great laches on the part of the prosecution.
21. It is also relevant to note that I.O. of the case
has also not been examined. It is well settled that mere non-
examination of I.O. does not discredit the prosecution version.
However, the right of bringing on record, the contradictions in
the statement of witnesses made before I.O. is a very valuable
right of the accused and by showing that, the witnesses have
made improvements or have given evidence, which contradicts
their earlier statement, the accused is able to satisfy the Court
that the witness is not a reliable witness. The I.O., in the facts
and circumstances of the case, is a material witness and his non-
examination has prejudiced Appellant no. 1.
22. The seizure-list witnesses, namely, Bans
Ropan Singh and Shiv Bachan Singh and other persons were
assembled at the place of occurrence who were the independent
witnesses have been withheld from the Trial Court and were not
examined by the prosecution and the Trial Court would draw
adverse inference against the prosecution case. The prosecution
failed to prove the seizure-list which creates doubt in the
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prosecution case. The seized material objects have not been
brought before the Trial Court for identification and the
prosecution failed to prove the recovery from the accused
persons.
23. It is pertinent to note that Section 399 of the
Indian Penal Code deals with making preparation to commit
dacoity and Section 402 of the Indian Penal Code deals with
assembling for purpose of committing dacoity. The offence
under Section 402 of the Indian Penal Code is complete as soon
as five or more persons assemble together for the purpose of
committing a dacoity. Preparation to commit dacoity may take
place before or after the dacoits assemble together. Preparation
consists in devising or arranging the means necessary for the
commission of an offence. Though, offence falling under
Section 399 and 402 of the Indian Penal Code involve almost
similar ingredients, the difference is that under Section 402 of
the Indian Penal Code mere assembly without any preparation is
enough to attract the offence, whereas Section 399 of the Indian
Penal Code is attracted only if some additional steps are taken in
the course of preparation.
24. As per the prosecution evidence, the place of
occurrence was quite close to the place where dance program
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was going on. It is difficult to believe that appellant no. 1 with
other accused persons would have assembled at such a
conspicuous place with the intention of committing a dacoity
and would take such a grave risk. The statement of accused
persons before the police, who were caught hold by the police
party that they were going to commit a dacoity being clearly
inadmissible has to be excluded from consideration. The
possibility that accused persons may have collected for the
purpose of committing some other offence cannot be safely
eliminated. It cannot be said that the articles seized from
possession of the co-accused persons can be utilized only for the
purpose of committing dacoity and for no other offence. The
prosecution must have proved from the evidence directly or
indirectly or from attending circumstances that the accused
persons had assembled for no other purpose than to make
preparation for commission of dacoity.
25. Though, merely because independent
witnesses were not examined, the evidence of the official
witnesses cannot be discarded. Even if the prosecution has
successfully established that the appellant along with four other
persons assembled in a lonely place i.e. sugarcane field in the
odd hours of night i.e. around 1.30 A.M. on 09.11.1987 and
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from possession of co-accused persons arms were seized, in my
humble view, that by itself cannot be sufficient to hold that the
appellant no. 1, from whom no arms were recovered, had
assembled there for the purpose of committing dacoity or was
making preparation to accomplish that object. It cannot be said
that the articles seized from the possession of the co-accused
persons can be utilized only for the purpose of committing
dacoity and for no other offence. As stated above, neither
seizure-list was prepared nor seized material objects were
produced in the Trial Court by the prosecution and seizure-list
witnesses were also withheld by the prosecution. The aid of
Section 106 of the Evidence Act can be taken in criminal trial
only when the prosecution has led evidence which, if believed,
will sustain conviction or which makes out a prima facie case.
Unless this is done, no burden of proving anything would lie on
the accused. If there is any fallacy in explaining his position on
the part of the appellant no. 1, that would not absolve the
prosecution from its primary obligation to make out a prima
facie case under Sections 399, 402 and 307/34 of the Indian
Penal Code against the appellant no. 1.
26. The prosecution witnesses deposed that the
accused persons were positioned at a distance of 20-30 yards.
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From such distance, it was difficult for the police party to have
heard the conversation going on amongst the dacoits. It is
nobody’s case that the dacoits were shouting. After all they had
to remain silent, conceal themselves and watch the passersby in
order to commit dacoity. Therefore, they would not have
shouted, otherwise that will frustrate the very purpose of
assembly. The result is that this part of the prosecution story is
not acceptable that conversation going on amongst the dacoits
could have been audible to police party. This way, the very basis
of the prosecution story falls.
27. In a criminal trial, the burden lies heavily on
the prosecution to prove its case beyond reasonable doubt. The
evidence on record falls short of this standard. The prosecution
case is riddled with material contradictions, procedural
irregularities, and lack of substantive evidence linking the
accused directly with the alleged offence.
28. In view of the above, this Court is of the
considered opinion that the prosecution has failed to bring home
the charge against the accused. The benefit of doubt must,
therefore, go with the accused as the prosecution failed to
establish the guilt of appellant no. 1 by adducing clear, cogent,
trustworthy and clinching evidence.
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29. Accordingly, the judgment/order of conviction
and sentence dated 22.02.2006 passed by the learned Trial Court
in S.T. No. 315 of 1988 arising out of Dhansoin P.S. Case No.87
of 1987 against appellant no. 1, Lal Bahadur Choudhary is set
aside. The accused, Lal Bahadur Choudhary is hereby acquitted
of the charge. He is on bail and his bail bonds, if any, shall stand
discharged.
30. The appeal of appellant no. 1 is allowed
accordingly.
31. Let the Trial Court record be returned to the
Court concerned.
(Sunil Dutta Mishra, J)
rakhi/-
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