Patna High Court
Jai Prakash Prasad And Ors vs State Of Bihar on 6 August, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.391 of 2006
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1. Jai Prakash Prasad.
2. Bacha Lal Prasad.
3. Nayan Prasad.
4. Subash Prasad.
All Sons of Late Bhagwat Prasad, all are residents of Village- Giridharpur,
P.S. Baraharia, District- Siwan.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Vipul Sinha, Amicus Curiae
For the State : Mr. A. M. P. Mehta, APP
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CORAM: HONOURABLE MR. JUSTICE RAMESH CHAND MALVIYA
CAV JUDGMENT
Date: 06-08-2025
Heard Mr. Vipul Sinha, Amicus Curiae, learned
counsel for the Amicus Curiae and Mr. A.M.P. Mehta, learned
APP for the State.
2. The present appeal has been filed under
Section 374 (2) of Code of Criminal Procedure, 1973
(hereinafter referred to as 'Cr.P.C') challenging the judgment
and order of sentence dated 27.05.2006 passed by the learned
Additional District & Sessions Judge, (Fast Track Court No.
III), Siwan in Sessions Trial No. 72 of 1986 arising out of
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Barharia P.S. Case No. 89 of 1985 / G.R. No. 1408 of 1985
whereby and where under the learned trial Court has convicted
the appellants under Sections 307 and 326 of the Indian Penal
Code (hereinafter referred to as 'IPC') and Section 27 of the
Arms and sentenced to undergo rigorous imprisonment for
seven years to pay a fine of Rs.1,000/- and in default of payment
of fine, further to undergo rigorous imprisonment for three
months for the offence punishable under Section 307 of the IPC
and they are further sentence to undergo rigorous imprisonment
for seven years and to pay a fine of Rs.1,000/- and in default of
payment of fine, they will have to undergo rigorous
imprisonment for three months for the offence punishable under
Section 326 of the IPC. They are further directed to undergo
rigorous imprisonment for three years for the offence punishable
under Section 27 of the Arms Act. All the sentences shall run
concurrently. Bacha Lal Prasad, Nayan Prasad and Subash
Prasad have also been convicted under Sections 147 and 323 of
the IPC and directed to be released on their entry into bounds to
Rs. 5,000/- with two sureties of like amount each for a period of
one year.
3. The brief fact leading to the filing of the
present appeal on the basis of the fardbeyan of the informant on
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21.07.1985
at about 7.30 PM, accused Jai Prakash Prasad,
Subash Prasad, Bachhalal Prasad and Nayan Prasad caught hold
of Lallan Prasad when he was going to take meal and started
assaulting Lallan Prasad with fists and slaps. On the cry of
Lallan Prasad, the informant and villagers rushed there and tried
to save Lallan Prasad. In the meantime, the accused Jai Prakash
Prasad went inside his house and brought a pistol and he (Jai
Prakash Prasad) fired from pistol on Lallan Prasad, who
sustained injuries on left cheek, eye etc. and fell on the ground.
Thereafter accused Hayan Prasad, Subash Prasad, Biralal
Prasad, Bachha Prasad, Ashok Kumar Prasad, Habib Mian,
Haider Mian having formed on unlawful assembly and started
assaulting with lathi, bhala, farsa and bricks. The accused Nayan
Prasad and Subash Prased assaulted the informant with lathis.
The accused Nayan Prasad assaulted Hridyanand Prasad on
head with farsa. The accused persons assaulted the other injured
persons. The injured Lallan Prasad was referred to Sadar
Hospital, Siwan for treatment. The witnesses, namely, Vidya
Ratna Prasad, Babulal Manjhi, Radha Bhagat, Vishwanath
Bhagat and others saw the occurrence. The reason behind the
occurrence is stated that the informant’s father Binalal Prasad
had of illicit connection with the mother of accused Jay Prakash
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Prasad and his father Biralal Prasad intended to transfer the
entire properties to the family of Jai Prakash Prasad for which a
Panchayati was convened on that day.
4. On the basis of the fardbeyan of the informant
Baharia P.S. Case No. 89 of 1985 the case was registered against
the accused persons. The Police took up investigation and after
completion of investigation, charge sheet was submitted before
the Trial Court. After cognizance and commitment, the Sessions
trial was transferred to the Court of 2nd Additional Sessions
Judge, Siwan for disposal.
5. On behalf of prosecution total 6 witnesses
were examined. Out of them, PW-1 Hridyanand Prasad PW-2
Vishwanath Prasad PW-3 Ramajee Prasad PW-4 Nagina Prasad
PW-5 Lallan Prasad and PW-6 Dr.Anil Kumar.
6. PW-1 in his examination-in-chief stated that
the occurrence took place 10 years ago on 21.07.1985 at
approximately 6:30 PM. A panchayati was convened earlier that
day, at 12:30 PM, for the informant and the accused. As per the
panchayati, the Panchas partitioned the land in question and
demarcated the boundaries. Both parties agreed to the partition,
and the Panchas instructed that if any disputes arose, the parties
should approach them for resolution. At about 6:30 pm that
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same day, he heard shouting coming from the doorstep of Lallan
and Nagina Prasad. Upon hearing the commotion, the villagers,
including the witness, rushed to the place and saw Jai Prakash,
Subhash, Nayan, Baccha Lal, and Biralal Prasad collectively
assaulting Lallan Prasad.
6.i. He further stated that he attempted to
intervene and free Lallan, but Jai Prakash threatened to shoot
them if they did not leave. Despite the threat, they managed to
free Lallan. Jai Prakash then ran to his house, returned with a
pistol, and, as Lallan attempted to flee westward, Jai Prakash
chased him and fired a gunshot. The shot struck Lallan in his
left eye, neck, and temple. Lallan ran towards the corner of the
Baadi (garden) and collapsed at the door of Jiut Bhagat. At the
same time, Nayan Prasad attacked the witness with a Farsa
(sharp-edged weapon), striking his head and left elbow as he
attempted to protect Lallan. The women from the accused’s side
then climbed onto the roof and began throwing stones, injuring
others in the vicinity.
6.ii. After the incident, the injured individuals,
including the witness, went to Barharia Hospital for treatment.
Lallan was later referred to Siwan Sadar Hospital. The witness
confirmed that he recognized all the accused persons present,
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with Subhash being identified in the courtroom. He also
recognized the other accused involved. The occurrence was
witnessed by several individuals, including Sukhdev, Nagina,
Lallan, Radha Bhagat, Ramaji Prasad, Vidya Ratna Prasad, and
Vishwanath Bhagat.
6.iii. In his cross-examination, he stated that the
witness acknowledged that Jai Prakash had filed a counter-case
against them in relation to this matter. The court’s decision in
that case had directed both parties to maintain peace and
harmony, with eight individuals being made accused in the
counter-case. Several villagers, including Vishnu Dayal Prasad,
Biralal Prasad, and Shankar Prasad, arrived at the scene after the
occurrence. The witness clarified that no verbal altercation
preceded the assault. Jai Prakash was at that time in Siwan and
continues to reside there.
6.iv. Upon finding, Lallan lying injured, the
witness and others carried him to the courtyard of Radha
Bhagat. He further stated that his own head was bleeding, and
others had seen both his and Lallan’s injuries. He informed
Ramaji, Sukhdev Prasad, Nagina Prasad, and Vidya Prasad
about the injuries. He confirmed that all the accused persons
belong to two families, and that he himself is a co-sharer with
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both parties involved.
6.v. He further clarified that Lallan had been shot
before he fell and that Jai Prakash fired from a distance of
approximately 10 feet. He along with Ramaji and Vidya Prasad,
was positioned next to Lallan at the time of the shooting. Jai
Prakash fired only one shot. Afterward, Nayan Prasad attacked
the witness with a Farsa. Lallan’s doorways and his are
adjacent, and the Oota (raised platform) near their doorsteps
measures about 1.25 spans. Lallan was shot while trying to flee.
Sahadev Ram, the Chowkidar, arrived after the occurrence and
went to the hospital about 45 minutes later, accompanying the
injured parties.
6.vi. He further stated that the accused persons
had first gone to the police station to file a report before
proceeding to the hospital. Lallan was referred from Barharia
Hospital to Siwan Sadar Hospital. The witness’s statement was
recorded at Barharia Hospital, where he told the doctor that he
had been injured by a Farsa and that the edge of the weapon
struck his head. He reached the hospital at approximately 9:00
PM. along with the other injured individuals. The police station
is situated about half a kilometer from Barharia Hospital. Before
the shooting, Lallan did not notice that Jai Prakash had a katta
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(country-made pistol) in his hand, as Lallan was running away.
However, the witness and others observed it. Lallan was shot
about two Laggi north of where he was initially assaulted.
6.vii. He did not know how many individuals
from the accused’s side were injured. To his knowledge, no one
from the accused’s side had sustained any injuries. He further
clarified that both parties are Pattidar (co-sharers) and that he
himself is a co-sharer with both sides. He denied the suggestion
that he had been convicted in the counter-case or that he was
giving false testimony because he is a member of Lallan’s
group. He further denied that no such incident had occurred.
7. PW-2 in his examination-in-chief stated that
the occurrence took place 10 years ago at 6:30 PM. On that day,
at 12:00 PM, a Panchayati was held between the informant and
the accused persons. During the Panchayati, the Ghur-Dandaar
(fixing of demarcation) on the land of both parties was finalized.
The Panchas stated that if both parties faced any issues, they
should inform them. However, later on that same evening, all
the accused persons gathered at the spot. Lalan was shouting
loudly. He along with others arrived at the scene, and people
from nearby areas also joined. Among the accused, Subhash,
Jaiprakash, Nayan, Bachcha Lal, and Biralal were all assaulting
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Lalan by slapping him.
7.i. He along with the other individuals present
tried to separate them. At this point, Jaiprakash threatened them,
saying that they would be shot if they did not leave. Despite the
threat, they intervened and stopped the fighting. Then
Jaiprakash ran towards the west, went home, and returned with a
pistol. Jaiprakash fired at Lalan, hitting him in the left eye, neck,
and arm. As a result, Lalan lost his left eye due to the bullet
fragments. Lalan fell near the door of Jiut after being shot.
Subhash struck the witness with a stick, injuring his arm and
elbow. Nayan hit Hridayanand with a Farsa (axe-like weapon),
striking his head. After the incident, they went to Badharia
Hospital and then to Siwan Sadar Hospital. The witness’s
statement was recorded by the police. He recognized all the
accused persons.
7.ii. He further testified that he is the father of
Hridayanand, witness number-1. Witness Ram Naresh is also his
son, and he too witnessed the occurrence. In the Panchayati, the
Mukhiya Indrasan Prasad, Isha Mian, and Mulayam Khan
(Sarpanch) were present. He also stated that he has a half share
in the land for which the Panchayati was held. This included
plot numbers 426, 422, 428, 430, 431, 432, and other lands. The
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Ghur-Dandaar (demarcation) was fixed on the southern side of
plot number 426. However, no official papers were prepared for
the fixing of the demarcation. The accused persons did not usurp
the witness’s share of the land.
7.iii. He confirmed that he had no connection
with the land of Bujjhi and there had been no prior fight
between the Pattidar (co-sharer) of Bujjhi and his family.
Before the occurrence, Lalan did not consult his father, Biralal.
He was unaware if Biralal had executed a sale deed of the land
in favor of the accused persons, nor did he know whether any
opinion was taken regarding this matter. He did not know who
came to the scene after the occurrence, as it had become dark by
then. When he first reached the spot, he saw Lalan lying on the
ground. The accused persons were kicking and punching him.
He could not determine where exactly Lalan was injured, but
the people present had already removed those who were
assaulting him. The Chowkidar himself arrived after the
occurrence. He along with others went to Barharia along with
the Chowkidar.
7.iv. In his cross-examination, he stated that there
had been no fight among the members of the Bujjhi family. He
confirmed that the informant and the accused persons belonged
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to the same lineage. He further clarified that he had not
discussed the incident with anyone. Approximately 100 people
had gathered at the spot, but no other persons from the accused
side were present. He did not go to the scene to take sides;
rather, he was trying to separate both parties. He saw about 15-
16 men involved in the fighting. He confirmed that Jaiprakash
fired the shot from a distance of about 8-10 feet. No one was
with Lalan when he was shot. After the shooting, the witness,
along with Radha Bhagat, Ramaji, Hridayanand, Vidya, and
Ram Naresh, went to Lalan’s side. Lalan was wearing a vest and
a dhoti, and there was a lot of blood on his clothes.
7.v. Before they reached the police station, the
accused Jai Prakash and others had already gone to the police
station and filed a case. He along with others met the police on
the way to the police station. Upon seeing Lalan’s injury, the
doctor at Badharia Hospital immediately advised that he be
taken to Siwan, as he could not be treated there. He did not stay
at Badharia Hospital, as his injury was minor, and he was
treated by the doctor that same day. Lalan’s treatment started in
Siwan at around 10:30 PM. He denied the suggestion that he
became a witness in this case because he had been made an
accused in the counter case. He further denied the suggestion
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that the informant and his Pattidar (co-sharer) belonged to the
same group, and that he had given false testimony against the
accused.
8. PW-3 in his examination-in-chief stated that
the occurrence took place a little more than 10 years ago, on
21.07.1985, at about 6:30 in the evening. He was at his door
when he heard a commotion at Biralal and Jaiprakash’s house.
He went to the place of the occurrence, and other people also
arrived at the spot. Upon arrival, he saw that Jaiprakash, Biralal,
Subhash, Nayan Prasad, and Ashok were assaulting Lalan with
slaps and fists. He attempted to intervene, but Jaiprakash
threatened, by saying, “Move aside, or else I will shoot you.”
Fearing for their safety, they stepped back. As Lalan moved
towards an unknown direction, Jaiprakash fired a shot at him,
which struck Lalan. The bullet caused Lalan’s left eye to burst,
and he sustained injuries to his left temple and right arm. The
women of Jaiprakash’s house then began pelting bricks, injuring
other people present. He along with others took Lalan to
Badharia Hospital, where the doctor advised them to take him to
Siwan Sadar Hospital. Lalan was then treated at Siwan Hospital.
He recognized all the accused persons, and he confirmed that
Subhash, who is present in the courtroom, is one of the accused.
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8.i. He further stated that Jaiprakash had filed a
counter-case regarding the occurrence, in which both his father
and he were made accused. They were eventually released. He
also stated that Lalan’s father, Biralal, is an accused in that case.
The witness testified that Biralal had executed a sale deed
(Bainama) of the land in favor of the accused. Lalan did not file
a case regarding the land against the accused. Biralal has two
sons, Lalan and Nagina. Of the land that Biralal transferred to
the accused, the accused had left part of the land and had gained
possession of the rest.
8.ii. He stated that neighbors arrived after the
occurrence. The incident took place during the day. They went
to the hospital immediately after the incident and did not go to
the police station first. He also clarified that they were sent to
the hospital by the police. He confirmed that Lalan was
conscious at the time. After the shot was fired, the women began
pelting bricks and stones. The distance between the spot where
the scuffle took place earlier and the Khop (a round structure
made of bamboo planks) was about 7-8 yards. Lalan was
standing near the Khop when he was shot. At that time, Vidya
Prasad, Hridayanand, and Vishwanath Bhagat were standing
nearby.
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8.iii. He further explained that Jiut Bhagat’s
house was located between his house and the spot of the
occurrence. He could not say exactly where Lalan was struck by
the fists. It may have taken Jaiprakash two to four minutes to
return with the pistol. He added that no outsiders were present at
the crime scene. He could not recall whether Lalan was wearing
a lungi or a dhoti at the time, but there was blood on his clothes.
Two to four drops of blood had fallen on the ground. Regarding
the shooting, the witness stated that Jaiprakash fired the bullet
from a distance of about 7-8 yards. Lalan was shot from the
south direction. He denied the suggestion that he was giving
false testimony because he belonged to Lalan’s group and that
no bullet had struck him.
9. PW-4 in his examination-in-chief stated that
the occurrence took place on 21.07.1985, between 7:00 and 7:30
PM and he was at his home. Panchayati was held during the
day. On the same day, his brother was going to the courtyard to
eat food. At that time, Jaiprakash, Subhash Prasad, Bachcha Lal
Prasad, Nayan Prasad came and caught hold of his brother,
Lalan, and started beating him with slaps and fists. Upon
hearing the commotion, the witness went to the scene. As he
raised an alarm, many villagers arrived and stopped the fight.
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Meanwhile, Jaiprakash went home, brought a pistol, and fired a
shot at Lalan.
9.i. The shot struck Lalan in his left eye, left
cheek, and left temple. Lalan fell down. During this time, Radha
Bhagat arrived. Jaiprakash, Subhash, Bachcha Lal, Nayan
Prasad, Ashok Kumar, Biralal, Haider Miyan, and Habib Miyan
arrived with sticks and bricks and began assaulting the witness
and the people trying to rescue Lalan. Hridayanand struck
Nayan on the head with farsa, other accused assaulted them
with sticks and bricks. After which they went to Siwan Hospital.
Lalan was treated in Siwan. The Chowkidar arrived after the
occurrence, and they went to the police station with him. At the
police station, the police recorded their statement, which the
witness signed after confirming its accuracy. The reason for the
fight was a land dispute the panchas has fixed the demarcation
on the land and thus altercation and rivalry took place. He
identified Subhash Prasad as one of the accused, who is present
in the courtroom, and stated that he recognized the other
accused as well.
9.ii. In his cross-examination, he stated that the
injured person (Lallan) is his brother. Jaiprakash had filed a
counter-case regarding the occurrence, in which his father and
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he were made accused. They were released on 13.06.1995 after
being reprimanded. On hearing hulla he went to the seen of
alleged occurrence and saw that people were assaulting Lallan.
When Lallan was shot when he was leaving and no one was
adjacent to him. Lallan received shot on left part of his body.
The bullet shot from the distance of 7-8 yard at that time he was
standing at distance of 1-1.5 laggi in the east direction from
Lallan.
9.iii. He further stated that he did not know
whether his father had written the land in favor of the accused,
causing this dispute. On the same day, before the occurrence, a
Panchayati was held regarding the land, but he did not know
whether the mutation case for the land that his father had written
to the accused was pending in the court of the L.R.D.C. He
further stated that he had informed the Mukhiya and the police
about the occurrence. All the injured persons went to the
hospital and the police station with him. He did not know how
much money was spent on Lalan’s treatment.
9.iv. He also stated that the Mukhiya and
Chowkidar were present when his statement was recorded.
Indrasan Singh, the Mukhiya, and other Panchas, including
Narayan, Satyanarayan Prasad, Bhikhi Singh, and Devnarayan
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Singh, were present during the Panchayati. He did not know the
exact area of the land that had been demarcated. He did not
show the demarcated land to the Sub-Inspector. Blood was
spilled at the place of alleged occurrence. Lalan was wearing a
vest and a lungi, with blood on his clothes. The Sub-Inspector
saw the blood stain cloth of injured. He further stated that a
piece of brick was found at the place of the occurrence.
9.v. He went to the police station after 3-4 hours
of the alleged occurrence. First, he went to the police station,
and then to the hospital. He stated that he had no enmity with
the other injured parties. He further stated that the accused
persons belonged to the same family. He stated that the police
did not take his statement again and that he did not know
whether the accused were also injured. He denied the suggestion
that the occurrence had not taken place and that they had
assaulted the accused, filing a fabricated case in connivance
with the doctors to save themselves from a counter-case.
10. PW-5 in his examination-in-chief stated that
the occurrence took place on 21.07.1985, at around 6:30 pm. A
Panchayati had been held earlier that day regarding the division
of land between the accused persons and the his family. The
Panchas conducted the division and fixed the Ghur-Dandaar
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(demarcation) of the land. The Panchas had ascertained that the
accounts would be settled later as per their opinion, but
Jaiprakash uprooted the demarcation fixed by the Panchas and
threw it away. On the same day, at around 6:30 pm, he was
returning home for dinner. As the food was not yet ready, he
turned back and was going out.
10.i. At that time, Jaiprakash, Subhash, Nayan,
Bachcha Lal, Ashok, Biralal, and two others were sitting in the
Eastward Palani (a temporary hut-like shed) adjacent to his
house. Jaiprakash, Nayan, Bachcha Lal, Subhash, and Biralal
caught hold of him and started assaulting him. He started
screaming, and upon hearing his shouts, villagers and his
brother, Nageena Prasad, arrived at the spot. Biralal then told
Jaiprakash, “What are you looking at? Kill this bastard with a
pistol.” Jaiprakash went to his house, retrieved a pistol, and fired
at him. The bullet hit him in his left eye, left temple, and neck.
His left eye was damaged due to the gunshot injury, and he fell
down. The villagers then brought him to Barharia Hospital. The
doctor at Barharia Hospital advised that he should be taken to
Siwan Sadar Hospital, where he was treated. His statement was
recorded at the hospital. He recognized Subhash, who is present
in the court, and identified the other accused as well.
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10.ii. In his cross-examination, he stated that
accused Biralal is his father, and he would be 60-65 years old.
He testified that Bhagwat Prasad and Biralal Prasad are real
brothers. Bhagwat’s sons, Jaiprakash, Nayan Prasad, Subhash
Prasad, and Bachcha Lal were the accused and Ashok is the son
of Subhash. He and the accused live in the same courtyard, and
they have roofed houses. At the time of the occurrence, many
women were on the roof. The women of the accused side were
throwing bricks at the witness and others. It was a dark night,
and four to five women were throwing bricks indiscriminately.
10.iii. He stated that Nagina Prasad, Vishwanath
Prasad, Girjanand, and Ramaji Prasad were injured by bricks.
The witness was also present among those who got hurt. He was
not injured by sticks, but rather by punches and slaps. He was
unsure of the severity of his injuries but stated that he was
injured all over his body. The occurrence took place at the
Duaar (an adjacent plot in front of the house). The fight
occurred about 2-4 footsteps away from the Duaar. The witness
did not lose consciousness and fell down. When he shouted,
people came and tried to break up the fight. He further stated
that Jaiprakash had filed a counter-case against him and
Nageena Prasad in connection to this incident. They were
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granted bail in that case and were found guilty but released on
bond.
10.iv. He further stated that no one from his side
was present at the time of the fight. People came after hearing
the commotion, and no one shielded him to protect him from
being beaten. When the accused were assaulting him, Jaiprakash
did not have the pistol. He got injured by sharpnels. he was
unable to confirm if he was injured by bullets. Jaiprakash
attacked him from the door and was hit at the Duaar, which was
about 5-6 footsteps away from the door. Jaiprakash shot him
while he was running towards the west, and as he took a step
forward, he was shot. The door faces north, and he was not
injured on the back of his shoulder or head. Jaiprakash hit him
from distance of 4-5 footstep and he did not faint. He got his eye
treated at Sitapur for recovery of his eye sight his injury got
treated in Siwan.
10.v. At the time of the occurrence, he was
wearing a vest and a lungi. There were no marks of injury on the
vest or lungi. He further stated that as soon as he heard about the
pistol, he started running. It took no time for Jaiprakash to take
the pistol out of his house. Jaiprakash lives in the room to the
east of the courtyard, facing west, while his room is in the same
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courtyard, facing north. His wife and son were at home, and his
wife was trying to free him. However, his wife and son are not
witnesses in this case. He did not know for how many days
Jaiprakash had been keeping the pistol, but they knew that he
had the pistol at home. He had not reported the pistol to the
police station earlier.
10.vi. He in his cross-examination stated that
people from all castes reside in their village. There are three
houses next to theirs, but there was no enmity with them. These
people are not witnesses in the case, but they came to the scene
of the occurrence. After the occurrence, he first went to the
Badharia police station, where he reported the incident, but his
statement was later recorded in the hospital. After visiting the
police station, the witness went to Badharia Hospital, and then
to Siwan Hospital. After getting injured, the witness fell at a
distance of 5-7 steps. Blood spilled on the witness’s vest and
lungi and on the ground. The police saw the blood-stained cloth.
11. PW-6 in his examination-in-chief stated that
on 21.07.1985 he was posted at Sadar Hospital at Siwan and on
that day at about 11:30 pm he had examined Lalan and found
following injuries:
i. Pellet injury on left side of face and neck
about 1 mm diameter, sixteen such counted.
Patna High Court CR. APP (SJ) No.391 of 2006 dt.06-08-2025
22/36ii. Perforating in fury of left eye with
complete loss of vision.
iii. Pellet injury on left hand on dorsal
about 10 could be counted.
iv. Pellet injury on neck, five could be
counted, 1 mm diameter.
Injury No. (i), (iii) and (iv) are simple
caused by fire arm. Injury no. (ii) is
grievous caused by fire arm.
Age within 6 hours.
He has proved the injury report which has
been marked as Ext.2.
On the same day he examined Bishwanath
Prasad and found the following injuries on
his person: –
(i) Swelling on Right fore arm 3″x2″.
(ii) Abrasion on Right knee.
(iii) Swelling on left ankle 1k2x 1″.
(iv) Abrasion on nose “x”.
All injuries are simple caused by hard blunt
substance.
Age-within 6 hours.
He has proved the in jury report which has
been marked as Ext.2/a.
On the same day he examined Ram Naresh
Prasad and found the following injuries on
his person:-
(i) Swelling on Right scapular region
1″x1/2″.
(ii) Swelling on left thigh anterior aspect 1
¼” x 1/3″.
All injuries are simple caused by hard blunt
substance,
Age-within 6 hours.
He has proved the injury report which has
been marked as ext. 2/b.
11.i. In his cross-examination, he stated that all
Patna High Court CR. APP (SJ) No.391 of 2006 dt.06-08-2025
23/36
the injury report were written on 22.07.1985 and he has not
mention the depth of pellet injury. He further stated that X-Ray
report was produced before him. If injury is made at a distance
of 15ft. it will cause chavod. Injury of Lalan are no chavod
injury and he do not remember that Lalan had also told him that
he had lost his vision of left eye.
12. Learned Amicus Curiae for the appellants
submits that the impugned judgment of conviction and order of
sentence are not sustainable in the eye of law or on facts.
Learned trial Court has not applied its judicial mind and
erroneously passed the judgment of conviction and order of
sentence from the perusal of the evidences adduced on behalf of
the prosecution it is crystal clear that the place of occurrence in
this case has not been shown by the prosecution. It has not been
established and there is contradiction in the statements of
witnesses regarding the place of occurrence.
12.i. Learned Amicus Curiae further submits that
PW-1 stated is his examination-in-chief that accused Nayan Pd.
assaulted him with farsa resulting injury on head and left elbow,
however, from the perusal of record as well as injury report on
the record it will appear that this witness was never medically
treated. Further PW-2 stated that accused Subhash assaulted him
Patna High Court CR. APP (SJ) No.391 of 2006 dt.06-08-2025
24/36
with lathi resulting injury on his elbow, meaning thereby he
received only one blow, however as per injury report (Ext. 2/a)
he received four (4) injuries, which are simple is nature [All
bruise, swelling & Abrasion]. PW-3 stated in his deposition that
he received injury from the bricks which was being thrown by
the ladies from the house of accused Jai Prakash As per injury
report (Ext- 2/b) 2 (two) injuries were found on his person
which were simple in nature.
12.ii. He further submitted that PW-4 (Informant)
in para 4 of his deposition stated that there is a case and counter
case in which the informant side were convicted and released on
admonition. As per para 7 both parties belong to the same
family. In his examination-in-chief he stated that he also
received injury, but there is no medical report regarding his
injury. He also admitted that there is a land dispute between the
parties. PW-5 stated that Jai Prakash fired from pistol resulting
injury in his left eye, left side of face and neck. Injury report
also goes to suggest That Shot he received 4 (four) gunshot
injury on his person and due to injury in left eye there was
complete loss of vision.
12.iii. He further submitted that IO has not been
examined in this case which has caused prejudice to the
Patna High Court CR. APP (SJ) No.391 of 2006 dt.06-08-2025
25/36
prosecution story and no independent witness has been
examined as there were altogether 15 charge-sheeted witnesses.
All witnesses examined were admittedly interested and
witnesses land dispute between the parties case & counter case
(Ext. A). Therefore, appellants have acquitted out rightly. In
view of the above facts it can be said that the appellants are
innocent and have not caused any injury to the deceased.
12.iv. Learned counsel further submitted that as
this appeal is of the year 2006 and occurrence is of the year
1985, where, the appellants have suffered and undergone
persistent agony on the account of the same and are struggling
for the defence since last 19-20 years. So, the appellants should
have been acquitted from the conviction as sentenced against
them.
13. However, learned APP for the State defends
the impugned judgment of conviction and the order of sentence
submitting that there is no illegality or infirmity in the impugned
judgment and order of sentence, because prosecution has proved
its case against the appellants beyond shadow of all reasonable
doubts. In view of the aforesaid statements and the evidence on
record, learned trial Court has rightly convicted the appellants
and the present appeal should not be entertained.
Patna High Court CR. APP (SJ) No.391 of 2006 dt.06-08-2025
26/36
14. At this stage, I would like to appreciate the
relevant extract of entire evidence led by the prosecution before
the Trial Court. I have thoroughly perused the materials on
record as well as given thoughtful consideration to the
submissions advanced by both the parties.
15. On deeply studied and scrutinized all
evidences, it is evident to note that in the present case there is
specific allegation against all the appellants that Jaiprakash fired
the shot at Lallan from a distance of about 8-10 feet. Lallan was
wearing a vest and a dhoti, and there was a lot of blood stains on
his clothes which has also been corroborated by all the
prosecution witnesses. Therefore it is crystal clear that all the
prosecution witnesses has corroborated the manner, place and
time of alleged occurrence. Further doctor (PW-6) an
independent witness has stated in his deposition that injured
(Lallan) has received 4 injuries out of which injury no. (i), (iii)
and (iv) are simple caused by fire arm, injury no. (ii) i.e.,
perforating in fury of left eye with complete loss of vision is
grievous caused by fire arm. He also examined PW-2 and
proved his injury that all injuries are simple caused by hard
blunt substance. Here, it is imperative to recall Section 320 of
the IPC. Section 320 read as follows:-
Patna High Court CR. APP (SJ) No.391 of 2006 dt.06-08-2025
27/36The following kinds of hurt only are
designated as “grievous”:-
First.- Emasculation.
Secondly.-Permanent privation of the sight
of either eye.
Thirdly.- Permanent privation of the
hearing of either ear,
Fourthly.-Privation of any member or joint.
Fifthly.- Destruction or permanent
impairing of the powers of any member or
joint.
Sixthly.- Permanent dis-figuration of the
head or face.
Seventhly.-Fracture or dislocation of a bone
or tooth.
Eighthly.-Any hurt which endangers life or
which causes the sufferer to be during the
space of twenty days in severe bodily pain,
or unable to follow his ordinary pursuits.
16. A defective investigation is not always fatal
to the prosecution where ocular testimony is found credible and
cogent. So far non-examination of IO is concerned, it cannot in
all cases would not render the prosecution case fatal and be a
determinative factor to throw out a credible prosecution version.
In the present case, there is adequate eye witness’s testimony to
establish the offence against the accused/appellants. Further,
even if the Investigating Officer has not been examined in the
present case, it is not fatal to the prosecution case as the place of
occurrence has not been challenged at any point of time. The
place of occurrence is well established, so it creates no
Patna High Court CR. APP (SJ) No.391 of 2006 dt.06-08-2025
28/36
suspicion on prosecution case and also not prejudiced the
accused. Moreover, in the entire evidence of the present case,
the statement of informant is not challenged by defence that his
statement is in contradiction with fardbeyan. The essential
ingredients of Section 145 of the Indian Evidence Act has not
fulfilled as no attention on previous statement has been drawn.
Section 145 read as follow:-
“Section 145 Cross-examination as to
previous statements in writing- A witness
may be cross-examined as to previous
statements made by him in writing or
reduced into writing, and relevant to
matters in question, without such writing
being shown to him, or being proved; but, if
it is intended to contradict him by the
writing, his attention must, before the
writing can be proved, be called to those
parts of it which are to be used for the
purpose of contradicting him.”
17. It is evident that to take any contradiction of
the facts, it is necessary to draw the attention from the previous
statement of the witnesses and if he deny from that statement
then he should be granted proper opportunity to explain how
and why it is written. This will be proper compliance of Section
145 of the Evidence Act, 1872 as laid down by the Hon’ble
Supreme Court in the case of Karan Singh And Ors. Vs. Sate of
M.P. (2003) 12 SC Cases 587 in Paragraph No. 5:
Patna High Court CR. APP (SJ) No.391 of 2006 dt.06-08-2025
29/36“5. When a previous statement is to be
proved as an admission, the statement as
such should be put to the witness and if the
witness denies having given such a
statement, it does not amount to any
admission and if it is proved that he had
given such a statement the attention of the
witness must withdrawn to that statement.
Section 145 of the Evidence Act is clear on
this aspect. The object is to give the witness
a chance of explaining discrepancies or
inconsistencies and to clear up the
particular point of ambiguity or dispute. In
the instant case Ext. D-4 statement as such
was not put to the witness nor was the
witness given an opportunity to explain it.
Therefore, Ext. D-4 statement, even if it is
assumed to be a statement of PW-1 Hari
Singh, that is, of no assistance to prove
their case of private defence.”
18. Informant in his deposition stated that he
went to the police station after the alleged occurrence and
narrated the occurrence to IO and IO wrote the said fardbeyan
which after finding to be true informant signed the same.
Further, no objection was raised by the defence in regard to the
fardbeyan at the time of deposition of informant whether the
contents written in the fardbeyan was same as narrated by the
informant or not. Neither learned counsel for the defence raised
any objection regarding place of occurrence for which it would
be necessary to examine IO to corroborate the prosecution case.
Patna High Court CR. APP (SJ) No.391 of 2006 dt.06-08-2025
30/36
Forthcoming on the point that non examination of IO makes the
prosecution case fatal is wrong as Doctor in his deposition
corroborated the case of the prosecution as both Investigating
Officer and Doctor are corroborative evidence and their
examination is required to see that prosecution story is being
corroborated by the evidences available on record or not.
19. It is well settled principle of law that the
testimony of any family members of the victim cannot be
discarded only on account of his/her relationship with the
victim, especially when the related witnesses is natural witness
and injured witness. So, there presence is proved beyond
shadow of all reasonable doubts. The injury of Lallan is caused
by gun shot and not falsely implicated. The occurrence is of july
month at about 6.30 PM its natural that sufficient light was
available to identify the accused and see the occurrence.
Further the place of occurrence is nearby place of the house so,
the presence of family members were considered as natural
witnesses. There are no material inconsistencies in the
deposition of the witnesses as the informant and other
prosecution witnesses were consistent on each substantive point
in their deposition. So, the prosecution has been completely
successful in proving the date of occurrence, genesis of
Patna High Court CR. APP (SJ) No.391 of 2006 dt.06-08-2025
31/36
occurrence, manner of occurrence, motive of occurrence and
place of occurrence in the present case and proving the
allegations levelled against the appellants beyond all reasonable
doubt. Due to which the charge under Sections 307, 326 of the
IPC and Section 27 of the Arms Act is rightly proved against
them.
20. Further, on the basis of the above
circumstances, facts and evidence, this Court comes to the
conclusion that the prosecution has been successful in proving
its case against the accused/appellants beyond shadow of all
reasonable doubts. The Hon’ble Supreme Court in the case of
State of M. P. v. Saleem (2005) 5 SCC 554, where Hon’ble
Apex court has categorically held that whether there was
intention to kill or knowledge that death will be caused is a
question of fact and would depend on the facts of a given case,
Relevant portion of the judgment reads as under:
“16. Whether there was intention to kill or
knowledge that death will be caused is a
question of fact and would depend on the
facts of a given case. The circumstances
that the injury inflicted by the accused was
simple or minor will not by itself rule out
application of Section 307 IPC. The
determinative question is the intention or
knowledge, as the case may be, and not the
nature of the injury….”
Patna High Court CR. APP (SJ) No.391 of 2006 dt.06-08-2025
32/36
21. The Hon’ble Apex Court in the case of Jage
Ram v. State of Haryana reported in (2015) 11 SCC 366 the
paragraph No. 12 and 13 which are as under:
“12. For the purpose of conviction under
Section 307 IPC, the prosecution has to
establish i. the intention to commit murder;
and ii. the act done by the accused. The
burden is on the prosecution that the
accused had attempted to commit the
murder of the prosecution witness. Whether
the accused person intended to commit
murder of another person would depend
upon the facts and circumstances of each
case. To justify a conviction under Section
307 IPC, it is not essential that fatal injury
capable of causing death should have been
caused. Although the nature of injury
actually caused may be of assistance
incoming to a finding as to the intention of
the accused, such intention may also be
adduced from other circumstances The
intention of the accused is to be gathered
from the circumstances like the nature of
the weapon used, words used by the
accused at the time of the incident, motive
of the accused, parts of the body where the
injury was caused and the nature of injury
and severity of the blows given, etc.
22. The Hon’ble Apex Court in the case of State
of M.P. v. Kashiram (2009) 4 SCC 26: (2009)2 SCC (Cri) 40:
AIR 2009 SC 1642], the scope of intention for attracting
conviction under Section 307 IPC was elaborated and it was
Patna High Court CR. APP (SJ) No.391 of 2006 dt.06-08-2025
33/36held as under: (SCC pp. 29-30, paras 12-13)
“12…13. It is sufficient to justify a
conviction under Section 307 if there is
present an intent coupled with some overt
act in execution thereof. It is not essential
that bodily injury capable of causing death
should have been inflicted. The Section
makes a distinction between the act of the
accused and its result, if any. The court has
to see whether the act, irrespective of its
result, was done with the intention or
knowledge and under circumstances
mentioned in the section. Therefore, an
accused charged under Section 307 IPC
cannot be acquitted merely because the
injuries inflicted on the victim were in the
nature of a simple hurt.”
23. Moreover, in the present case it is evident
from the facts and material available in record that the grievous
injury has been caused by the deadly weapon to the injured
person resulted in the lost of vision of left eyes it attributed that
the appellants liable under Section 326 of the IPC which
provides the punishment for voluntarily causing grievous hurt
by dangerous weapon or means, Section 326 of the IPC reads as
follow:
“326. Voluntarily causing grievous hurt by
dangerous weapons or means Whoever,
except in the case provided for by Section
335, voluntarily causes grievous hurt by
means of any instrument for shooting,
stabbing or cutting, or any instrument
Patna High Court CR. APP (SJ) No.391 of 2006 dt.06-08-2025
34/36which, used as a weapon of offence, is
likely to cause death, or by means of fire or
any heated substance, or by means of any
poison or any corrosive substance, or by
means of any explosive substance, or by
means of any substance which it is
deleterious to the human body to inhale, to
swallow, or to receive into the blood, or by
means of any animal, shall be punished
with imprisonment for life, or with
imprisonment of either description for a
term which may extend to ten years, and
shall also be liable to fine.”
24. It is crystal clear that appellants, namely,
Subash Prasad, Nayan Prasad and Bacha Lal Prasad have the
common intention to cause injury to the victim by means of
fists and slaps whereas appellant, namely, Jai Prakash Prasad
used fatal weapon to cause grievous injuries and had the
intention to kill the informant which is proved by the
prosecution beyond shadow of all reasonable doubts. So,
considering all the materials available on record, it is evident
that the learned trial Court has rightly ordered to release
appellants, namely, Subhash Prasad, Nayan Prasad and
Bachhalal Prasad on probation of good conducts by entering
into bonds of Rs. 5,000/- with two sureties of like amount each
under Section 4 of the Probation of Offenders Act and convicted
appellant, namely, Jai Prakash Prasad under Sections 307 and
326 of the IPC and Section 27 of the Arms Act. Hence, the
Patna High Court CR. APP (SJ) No.391 of 2006 dt.06-08-2025
35/36
judgment and order of sentence dated 27.05.2006 passed by the
learned Additional District & Sessions Judge, (Fast Track Court
No. III), Siwan in Sessions Trial No. 72 of 1986 arising out of
Barharia P.S. Case No. 89 of 1985 / G.R. No. 1408 of 1985 is
upheld and sustained.
25. Accordingly, this appeal stands dismissed.
26. The appellant, namely, Jai Prakash Prasad is
on bail, hence he is directed to surrender before the learned Trial
Court within ten days from the date of receipt of a copy of this
judgment by the learned Trial Court and his bail bonds stands
cancelled and he is directed to serve the remaining part of his
sentence awarded by the learned Trial Court.
27. Before parting with this appeal, the Secretary,
Patna High Court Legal Services Committee is directed to pay
Rs. 8,000/- (eight thousand) to the learned Amicus Curiae,
namely, Mr. Vipul Sinha towards honorarium for assisting this
Court in the present appeal.
28. Let a copy of the first and last page of this
judgment be handed over to the advocate Mr. Vipul Sinha,
learned Amicus Curiae and Office is directed to proceed further
for grant of honorarium to him which is to be paid by the Patna
High Court Legal Services Committee.
Patna High Court CR. APP (SJ) No.391 of 2006 dt.06-08-2025
36/36
29. Office is directed to send back the trial Court
records and proceedings along with a copy of this judgment to
the trial Court, forthwith for necessary compliance.
(Ramesh Chand Malviya, J)
Anand Kr.
AFR/NAFR AFR CAV DATE 30.06.2025 Uploading Date 06.08.2025 Transmission Date 06.08.2025
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