Patna High Court
Laxman Sah And Ors vs The State Of Bihar on 6 March, 2025
Author: Mohit Kumar Shah
Bench: Mohit Kumar Shah
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No. 1160 of 2016
Arising Out of PS. Case No.-15 Year-2007 Thana- ADAPUR District- East Champaran
======================================================
1. Laxman Sah Son of Vishwanath Sah
2. Inar Sah Son of Panna Lal Sah
3. Vijay Sah Son of Mahanth Sah
4. Ajay Sah Son of Mahanth Sah
5. Mahanth Sah Son of Late Banshi Sah
6. Ramekbal Sah Son of Late Jiya Lal Sah
All the Above are Residents of Village-Harpur, Police Station-Harpur,
District-East Champaran
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
Appearance:
For the Appellant/s : Mr. Bindhyachal Singh, Sr. Adv.
Mr. Bipin Kumar Singh, Adv.
For the State : Mr. Dilip Kumar Sinha, Adv.
For the Informant : Mr. Uma Shankar Verma, Adv.
Mr. B.K. Mishra, Adv.
======================================================
CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
and
HONOURABLE MR. JUSTICE NANI TAGIA
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH)
Date: 06-03-2025
The present appeal under Section 374 (2) and Section 389
(2) of the Code of Criminal Procedure, 1973 (hereinafter
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referred to as "the Cr.P.C.") has been preferred against the
judgment of conviction and order of sentence dated 27.08.2016
and 02.09.2016 respectively, passed in Sessions Trial No. 936 of
2007 (arising out of Adapur P.S. case No. 15 of 2007) by the
learned VIIIth Additional Sessions Judge, East Champaran at
Motihari (hereinafter referred to as "the learned Trial Judge). By
the said judgment, the learned Trial Judge has convicted the
Appellant No. 1 under Section 147 and 302 of the Indian Penal
Code (hereinafter referred to as "the IPC") and has sentenced
him to undergo two years imprisonment under Section 147 of
the IPC and life imprisonment under Section 302 of the IPC
with a fine of Rs. 10,000/- and in default thereof, the Appellant
No. 1 has been directed to undergo additional six months
rigorous imprisonment. As far as the Appellants No. 2 to 6 are
concerned, they have been convicted under Section 147 of the
IPC and Section 149/302 of the IPC and have been sentenced to
undergo two years imprisonment under Section 147 of the IPC
and life imprisonment under Section 149/302 of the IPC with
fine of Rs. 10,000/- each and in default thereof, they have been
directed to undergo further six months rigorous imprisonment.
Both the sentences have been ordered to run concurrently.
2. Short facts of the case are that on 24.01.2007, a written
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report was submitted by Suresh Prasad (the informant) before
the Officer-in-Charge, Police Station-Harpur (Adapur, East
Champaran), wherein he has stated that he is resident of Harpur
and on 24.01.2007 at about 06:30 am in the morning, his elder
brother, Shiv Nath Prasad was coming after easing himself and
when he had reached at the door of the house of Ram Darshan,
Laxman Sah (Appellant No. 1), Awdhesh Sah, Mahanth Sah
(Appellant No. 5), Vijay Sah (Appellant No. 3), Ajay Sah
(Appellant No. 4), Ram Ekbal Sah (Appellant No. 6), Sanjay
Sah, Inar Sah (Appellant No.2) and Ram Sewak Sah had
surrounded him, who were sitting there from before. Thereafter,
these accused persons had caught hold of the elder brother of
Suresh Prasad (informant), namely Shiv Nath Prasad and had
started assaulting him as also abusing him. In the meantime,
Laxman Sah had given a lathi blow on the forehead of Shiv
Nath Prasad, resulting in his elder brother becoming injured and
falling down on the ground. Thereafter, the rest of the accused
persons had also assaulted him with lathi and fatha, leading to
his elder brother becoming unconscious. The witness to the
occurrence, namely, Ram Darshan Sah, Santosh Prasad, Vinod
Sah, Manoj Prasad and Ram Ekbal Prasad had intervened
leading to his life being spared. During the course of
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intervention, Awadhesh Sah had given a lathi blow on the right
hand of Ram Darshan Sah leading to his right hand being
fractured, whereafter Mahanth Sah had taken out a sum of Rs.
600/- from the pocket of the elder brother of Suresh Prasad
(informant) which he had earned upon selling vegetables. The
informant, namely, Suresh Prasad, has further stated that on the
previous day i.e. on 23.01.2007 in the night the accused persons,
without any reason, had assaulted Shambhu Sah and Biru
Kumar badly and injured them, whereafter he had given
information about the same to the Officer-in-Charge and then
the Office-in-Charge had come in the night and had seen the
injured. It has been stated that on account of the said reason,
today's occurrence has taken place and the condition of his elder
brother Shiv Nath Prasad is critical, hence the Doctor at Duncan
Hospital, Raxaul has referred him to PMCH, Patna, for further
treatment. He has also stated that his elder brother Shiv Nath
Prasad was admitted at Duncan Hospital, Raxaul, in an
unconscious state.
3. After the aforesaid written report dated 24.01.2007 was
submitted by Suresh Prasad, a formal FIR bearing Adapur
(Harpur) P.S. case No. 15 of 2007 was registered for offences
under Sections 147/148/149/341/323/ 325/307/379/504 of the
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IPC on 25.01.2007 at about 12:30 hours. Since Shiv Nath
Prasad had died, Section 302 of the IPC was added vide order
dated 06.02.2007. After investigation and finding the case to be
true qua the appellants and others, the police had submitted
charge-sheet on 01.07.2007 under Sections 147,148,149,323,
325, 341 and 302 of the IPC. The learned Trial Court had taken
cognizance of the offences under Sections 147,148,149,341,
323,325 and 302 of the IPC against the appellants and others by
an order dated 06.07.2007. Thereafter, the case was committed
to the Court of Sessions and was numbered as Sessions Trial
No. 936 of 2007. After taking into consideration the charge-
sheet and the materials collected during the course of
investigation, the learned Trial Judge had framed charges
against the Appellant No. 1 under Sections 147 and 302 of the
IPC, vide order dated 04.01.2008 and under Sections 147 and
302/149 of the IPC against the Appellant Nos. 2 to 6, vide order
dated 04.01.2008, to which they pleaded not guilty and claimed
to be tried.
4. During the course of trial, nine witnesses have been
examined. While P.W.1 Baijnath Prasad is the cousin of the
deceased, P.W.4 Kisnawati Devi is the wife of the deceased and
P.W.5 Suresh Prasad is the informant of the present case as also
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the brother of the deceased. P.W.6 Shravan Sah is the cousin
brother of the deceased. P.W.7 Ganesh Ram is the Investigating
Officer. P.W.8 Dr. Arun Kumar Singh is the Doctor, who had
conducted postmortem of the body of the deceased and P.W.9
Dr. S. K. Paswan is the Doctor who had examined the injured.
As far as P.W.2 Ram Darshan Sah (injured) and P.W.3 Mahendra
Sah are concerned, they are independent witnesses.
5. Sri Bindhyachal Singh, the learned Senior Counsel for the
appellants, assisted by Sri Bipin Kumar Singh, Advocate, has
submitted that the written report dated 24.01.2007, leading to
lodging of the FIR on 25.01.2007 is not the earliest version. It is
stated that the written report dated 24.01.2007 has been signed
by Suresh Prasad i.e. the informant, but the same is admittedly
not in his writing and during the course of his evidence, P.W.5
Suresh Prasad has admitted that the same was scribed by
Meghnath Prasad, however, he has not been examined by the
prosecution in the present case. It is also stated that the written
report dated 24.01.2007 does not even contain any recital to the
effect that the FIR was read over to the informant who had
understood the same and had then put his signature after finding
the same to be correct. It is also stated that P.W.5 Suresh Prasad
(informant) has stated in his evidence that he had filed case
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against 17 persons, however, the FIR dated 25.01.2007 is
against 9 persons only. Thus, it is submitted that the initial
version has been suppressed. It is also stated that P.W.7 i.e. the
Investigating Officer of this case has stated in his evidence that
he had recorded the statement of Ram Darshan Sah at 11:15 pm
on 24.01.2007 itself, thus the same being the first version should
have formed the basis of registration of the FIR in question,
however, the said statement of Ram Darshan Sah has not been
exhibited by the prosecution, which also creates doubt about the
case of the prosecution. It is next contended that there has been
delay in lodging the FIR for which there is no plausible
explanation, hence the case as propounded by the prosecution is
concocted. In this regard, it is stated that though the occurrence
had taken place on 24.01.2007 at about 06:30 am in the morning
and the written report was also submitted before the Officer-in-
Charge, Harpur (Adapur) Police Station, on 24.01.2007 itself,
nonetheless, the FIR was registered only on 25.01.2007 at about
12:30 hours and in fact, Ganesh Ram (Investigating Officer) has
stated in his evidence that though he had started investigation on
24.01.2007
itself and had forwarded the written report to the
Officer-in-charge, Police Station Adapur for instituting FIR,
nonetheless, it appears that the said forwarding note has been
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appended subsequently in order to cover the delay and in fact,
the FIR was registered on the next day i.e. on 25.01.2007 and
was received in the Court belatedly on 27.01.2007. Thus, it is
submitted that apparently the earliest version of the incident in
question has been withheld and a concocted version of the
incident has been brought on record for the purposes of
registration of FIR. The learned Senior Counsel for the
appellants has further submitted that the witnesses who have
been examined by the prosecution are though stated to be eye-
witnesses but it is not a fact that they are eye-witnesses,
inasmuch as they had arrived at the place of occurrence much
after the occurrence had taken place. In this connection, it is
submitted that as far as P.W.6 Shravan Sah is concerned, he has
stated in paragraph No. 2 of his evidence that at the time when
Suresh Sah had filed the case he was outside and had returned
home in the evening. Thus, it is submitted that P.W.6 is
admittedly not an eye-witness. Similarly, it is stated that as far
as P.W.4 (Kisnawati Devi) is concerned, she has stated in her
evidence in paragraph No. 1 that after she raised hullah,
Mahendra (P.W.3), Santosh, Vinod and Suresh (P.W.5) had
arrived there. Hence, it is submitted that admittedly, P.W.3 and
P.W.5 had arrived at the place of occurrence after the occurrence
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had already taken place, thus they cannot be stated to be eye-
witnesses. P.W.4 (Kisnawati Devi) has also stated in her
evidence in paragraph No. 4 that when she had reached the
place of occurrence, her husband had become unconscious,
meaning thereby that she was also not present at the time her
husband had been assaulted, thus she cannot also be an eye-
witness. P.W.4 has also stated in her evidence that after she had
raised an alarm, Ram Darshan (P.W.2) had arrived at the place
of occurrence. Thus, it is submitted that even P.W.2 cannot be
stated to be an eye-witness. In nutshell, the argument of the
learned Senior Counsel for the appellants is that all the aforesaid
witnesses are hearsay witnesses and not eye-witnesses as is
apparent from the evidence led by the prosecution.
6. The learned Senior Counsel for the appellants has next
contended that it is surprising that though the place of
occurrence is at the middle of the village in question, still the
prosecution has examined only interested witnesses and not
independent witnesses, which further creates a doubt about the
case of the prosecution. It is submitted that most of the
witnesses have been examined by the Police after lapse of
considerable time of the occurrence which also leads to the
inference that the correct version has not come on record. The
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learned Senior Counsel for the appellants has further submitted
that it has come in the evidence of the prosecution that at the
place of occurrence, there were 24-25 persons, however none of
the independent witnesses have been examined. It is also
contended that the prosecution story does not corroborate with
the medical evidence. The learned Senior Counsel for the
appellants has referred to the evidence of P.W.8 Dr. Arun Kumar
Singh to submit that no external injury of lathi blow has been
found on the head of the deceased, thus the manner of
occurrence is belied. It is also stated that P.W.9 Dr. S. K. Paswan
has stated that the injuries are within 24 hours, however, the fact
is that the injury was stated to have been inflicted upon Ram
Darsan Sah on 24.01.2007 at about 6:30 am, whereas Dr. S. K.
Paswan had examined the injured person, namely, Ram Darsan
Sah, on 25.01.2007 at 1:45 pm, hence the manner of occurrence
is not proved. In this connection, the learned Senior Counsel for
the appellants has referred to Section 45 of the Indian Evidence
Act and has also referred to a judgment, rendered by the
Hon’ble Apex Court, reported in AIR 1960 SC 706 (Smt.
Nagindra Bala Mitra and Anr. vs. Sunil Chandra Roy and
Anr.) to submit that value of a medical witness is not merely a
check upon the testimony of eye-witnesses but it is also an
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independent testimony because it may establish certain facts,
quite apart from the other oral evidence. The learned Senior
Counsel for the appellants has also submitted that motive of the
occurrence has not been proved. Thus, in nutshell the evidence
of the prosecution witnesses would show that none of the
witnesses are eye-witnesses, hence their evidences cannot be
said to be credible or trustworthy, thus the conviction of the
appellants is perverse. Lastly, it is submitted that even if all the
evidences adduced by the prosecution are accepted to be true on
their face value, it would be apparent that though there is one
injury but 12 accused persons have been convicted and even the
Appellant No.1 had not engaged in repeated blow, hence he had
no intention to kill the deceased, thus the present case would fall
within the ambit of culpable homicide not amounting to murder.
Thus, it is submitted that the judgment and order of conviction
and sentence is fit to be set aside.
7. Per contra, the learned APP for the State, Sri Dilip
Kumar Sinha, has submitted that the Appellant No.1 has given a
lathi blow on the head of the deceased and the evidence of the
Doctor, who has conducted postmortem, i.e. P.W.8 would show
that the cause of death is head injury, hence the offence
committed by the Appellant No.1 stands corroborated by the
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evidence on record. It is further submitted that as far as lodging
of F.I.R. on the basis of written report dated 24.01.2007 is
concerned, there is no lacuna inasmuch as after the Police
received the written report dated 24.01.2007, the same was
forwarded to the Office-in-Charge, Harpur (Adapur) Police
Station, whereupon the F.I.R. was registered on 25.01.2007 at
12:30 hours. It is also submitted that the present case arises out
of case and counter case. It is contended that the evidence of
relatives and family members cannot be discarded, however the
same is required to be carefully scrutinized and appreciated
before any conclusion is made to rest upon it, regarding the
convict / accused in a given case. Thus, it is submitted that the
evidence cannot be disbelieved merely on the ground that the
witnesses are related to each other or to the deceased and in
case, the evidence has a ring of truth to it, is cogent, credible
and trustworthy, it can and certainly should be relied upon.
Reference, in this connection has been made by the learned APP
for the State on a judgment, rendered by the Hon’ble Apex
Court in the case of Yogesh Singh vs. Mahabeer Singh and
Others, reported in (2017) 11 SCC 195. It is next contended by
the learned APP for the State that in the present case, the
evidence of prosecution witnesses are credible and trustworthy,
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hence, fit to be relied upon for the purposes of upholding the
conviction of the appellants. It is also submitted that in case,
direct evidence is available, motive does not play much role. In
this connection, reliance has been placed on a judgment,
rendered by the Hon’ble Apex Court in the case of Shivaji
Chintappa Patil v. State of Maharashtra, reported in (2021) 5
SCC 626. It is also stated that all the witnesses are eye-
witnesses and it is wrong to say that they are not eye-witnesses,
as would be apparent from their evidence on record. It is also
stated that there is no material contradiction in the evidence led
by the prosecution and the evidences of the prosecution
witnesses are consistent and cogent. It is next stated that the
present case is not a case of 304 Part-II of the IPC since the
Appellant No.1 had given three lathi blows on the head of the
deceased leading to his subsequent death. As far as the
Appellants No. 2 to 6 are concerned, they are members of
unlawful assembly, hence, they have been convicted under
Section 302 of the I.P.C. with the aid of Section 149 of the IPC.
Thus, it is submitted by the learned APP for the State that there
being no contradictions in the evidence of the prosecution
witnesses, who are consistent in their testimony, no interference
is required in the judgment of conviction and the order of
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sentence, rendered by the learned Trial Judge, hence the appeal
is fit to be dismissed.
8. Besides hearing the learned counsel for the parties, we
have minutely perused both the evidence i.e. oral and
documentary. Before proceeding further, it is necessary to
cursorily discuss the evidence.
9. P.W.1 Baijnath Prasad is the cousin brother of the
deceased and he has stated in his deposition that the occurrence
dates back to one year and one month at 6:30 am in the morning
at which time he was going for easing himself and when he had
reached at the door of the house of Ram Darshan Sah, he saw
that Shiv Nath Sah had been surrounded by Sri Lal Sah, Om
Prakash Sah, Madan Sah, Ambika Sah, Laxman Sah (Appellant
No.1), Mahanth Sah (Appellant No.5), Ramekbal Sah
(Appellant No.6), Mahavir Yadav, Panna Lal Sah, Sanjay Sah,
Inar Sah (Appellant No.2), Bigan Sah and Ajay Sah (Appellant
No.4). P.W.1 has further stated that Awadhesh Sah, Ashok Sah,
Jawahir Bhagat and Ram Sevak Sah were assaulting by lathi
and all of them were holding lathi in their hands. He has also
stated that first of all, Laxman Sah (Appellant No.1) had
assaulted Shiv Nath Sah twice by lathi, whereafter he had fallen
down and then all the people had also assaulted him. Shiv Nath
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Sah had then become unconscious and when alarm was raised,
Ram Darsan Sah (P.W.2) had gone there to save him and he was
also hit by Awadhesh Sah by lathi on his right hand, leading to
his hand being fractured. P.W.1 has next stated that the
occurrence was witnessed by Manoj Prasad, Ram Ekbal Sah,
Santosh Prasad, Hardyal Sah, Mahendra Sah (P.W.3), Hiralal
Sah, Ashok Sah and Shravan Sah (P.W.6). Thereafter, several
people had come from the village and the injured was taken in
an unconscious state to Duncan Hospital but he was referred to
PMCH, Patna, since his condition was not good. P.W.1 has also
stated that one day earlier to the said occurrence, quarrel had
taken place in between the children and then Shiv Nath Sah had
informed the Police Station and on account of the same,
Mahanth Sah and Ramekbal Sah said that he has crossed his
limits. He had recognized the accused persons standing in the
dock. In cross-examination, P.W.1 has stated that Ram Balak
Sah, Hira Sah and Yadav Lal Sah are his brothers and he is son
of Ram Balak Sah. P.W.1 has further stated that Shiv Nath Sah
died at Patna and Shravan Sah (P.W.6) had also filed his
farbayan there. P.W.1 has stated that he cannot say as to how
many accused persons have been named in the said fardbayan,
however, in the present case, there are 17 accused persons, who
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are all co-villagers and out of them nine are named in the
written report. P.W.1 has also stated in his cross-examination
that his statement was recorded by the Police and he had stated
before the Police that after the deceased Shiv Nath Sah had
fallen down, Mahant Sah (Appellant No. 5), Vijay Sah
(Appellant No. 3), Ajay Sah (Appellant No. 4) and others had
also assaulted him by lathi. P.W.1 has disclosed that the place of
occurrence is surrounded by the houses of Kishori Sah, Bhikhari
Sah, Ram Darsan Sah (P.W.2) and Ram Surat Tiwari. P.W.1 has
also stated that the house of the accused persons is situated at a
distance of half kilometer from the place of occurrence and
when he reached at the place of occurrence, 8-10 persons were
present there, namely Manoj Sah, Hardyal Sah, Mahendar Sah
(P.W.3), Vinod Sah, Hiralal Sah, Santosh Sah, Ram Darsan Sah
(P.W.2), Shravan Sah (P.W.6), Suresh Sah (P.W.5) and others. At
that time Shiv Nath Sah had fallen down on the south side of the
road, people had lifted Shiv Nath Sah and were taking him to
the Doctor for treatment, whereafter he had also accompanied
them. P.W.1 has stated that he had seen injuries on the body of
Shiv Nath and innumerable lathi blows had been inflicted on the
body of Shiv Nath. P.W.1 has next stated that no blood had
dropped where Shiv Nath had fallen down and the right hand of
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Ram Darsan (P.W.2) had been fractured, whereafter the same
was plastered and he had seen his full hand plastered. P.W.1 has
also stated in his cross-examination that he had seen redness on
the body and forehead of the deceased Shiv Nath Sah as also on
his nose and back, however he had not counted as to at how
many places he had received injuries. He has stated that Shiv
Nath died after 5-6 days of the incident at Patna. P.W.1 has also
stated that Shravan (P.W.6) is brother of Shiv Nath and he was
present in the village on the date of occurrence. P.W.1 has next
stated that Shravan had also gone to Duncan Hospital to get
Shiv Nath treated and he had also accompanied them. He has
stated that written report was submitted by Suresh Prasad for
lodging F.I.R and the statement of Shravan was recorded at
Patna but he cannot say as to whose name he had given in the
said statement. P.W.1 has further stated that Shiv Nath did not
regain consciousness prior to his death. P.W.1 has also stated
that counter case bearing Adapur P.S. Case No.14 of 2007 was
filed. P.W.1 has also stated that the treatment of Ram Darsan
was done at Adapur but he does not remember as to whether he
had seen injuries on the body of Ram Darsan (P.W.2), however
he had met Ram Darsan after 5-7 days of the occurrence in the
village and then he had only seen plaster on his hand.
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10. P.W.2 Ram Darshan Sah has stated in his deposition that
the occurrence dates back to one year and seven months at about
6:30 am in the morning and at that time he was at his house,
however upon coming outside his house he saw that Shiv Nath
Sah has been surrounded by 17-18 persons, namely, Mohan Sah,
Vijay Sah (Appellant No. 3), Ajay Sah (Appellant No. 4),
Jawahir Sah, Awadhesh Sah, Ashok Sah, Ramekbal Sah
(Appellant No. 6), Ram Sevak Sah, Laxman Sah (Appellant No.
1), Shiv Lal Sah, Om Prakash Sah, Mahavir Yadav, Ambika Sah,
Madan Sah, Panna Lal Sah, Inar Sah (Appellant No. 2) and
Sanjay Sah. The accused persons were abusing and Awadhesh
Sah had ordered to kill, whereafter Laxman Sah (Appellant No.
1) had given three lathi blows on the forehead of Shiv Nath Sah,
leading to him falling down and when he reached there, he was
also assaulted with lathi by Awadhesh and then all the accused
persons had started assaulting by lathi, fists, slaps and legs.
Thereafter, Shiv Nath Sah was taken to the hospital and
subsequently, he came to know that after 5-6 days of the date of
occurrence, he had died in the hospital. P.W. 2 had recognized
the accused persons standing in the dock. In cross-examination,
P.W.2 has stated that counter case was filed by Vijay Sah
bearing Adapur P.S. Case No. 14 of 2007 in which he and his
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three sons are accused. P.W.2 has further stated that his
statement was recorded by the police and he had disclosed the
names of Jawahir, Ashok, Srilal, Om Prakash, Mahavir, Panna
Lal and Ambika before the police. His statement was recorded
by the police in the night of the date of occurrence. P.W.2 has
also stated that he does not know where the case was written.
P.W.2 has further stated that he had told the police that after
hearing hulla (Alarm), he had gone to the place of occurrence
and there he was also assaulted leading to fracture of his hand.
P.W.2 has next stated that he had received injury at one place,
which was inflicted by lathi and his treatment was done at
Adapur. P.W.2 has further stated that he had neither given X-
Ray report nor injury report to the Investigating Officer. P.W.2
has also stated in his cross-examination that when he reached
the place of occurrence then 18-20 people were present there,
Shiv Nath Shah was standing but he did not see any injury on
his body and after 3-4 minutes of him having reached there, he
had received injury. P.W.2 has further stated that when the
accused persons were assaulting Shiv Nath, no body tried to
save him and Shiv Nath was assaulted by lathi, slaps and legs
while he was standing. He has also stated that he cannot state as
to on which part of the body of Shiv Nath, injury was inflicted
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and he had not seen the injuries inflicted on him, however, he
was inflicted with lathi blow on his head on the right temporal
region. The second lathi blow was inflicted above the neck.
P.W.2 has also stated that he did not see any injury over the head
of Shiv Nath. He has stated that after being inflicted by third
lathi blow, he had fallen down. He has also stated that he cannot
state as to on which parts of the body of Shiv Nath injury was
inflicted apart from head and cannot also state about the number
of injuries sustained by him. He has stated that thereafter, the
family members had arrived and taken Shiv Nath. P.W.2 has
further stated that his treatment was not done in the village and
he cannot say as to whether the police had recorded the
statement of Shiv Nath or not.
11. P.W.3 Mahendra Sah has stated in his deposition that the
occurrence dates back to 8-9 months at about 6:00 am in the
morning when he was at his house and after he heard hulla
(alarm), he reached the house of Ram Darshan (P.W.2) and saw
that assault was taking place and Ram Sewak, Ramekbal
(Appellant No. 6), Mahanth Sah (Appellant No. 5), Ajay Sah
(Appellant No. 4), Vijay Sah (Appellant No. 3), Awadhesh Sah,
Ashok Sah, Jawahir Sah, Panna Lal Sah, Sanjay Sah, Inar Sah
(Appellant No. 2), Ambika Sah, Madan Sah, Mahavir Raut,
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Laxman Sah (Appellant No. 1), Srilal Sah and Om Prakash Sah
were assaulting Shiv Nath Sah. Thereafter, Awadhesh Sah had
ordered to kill, whereafter Laxman Sah (Appellant No. 1) had
charged with his lathi and had assaulted Shiv Nath Sah 2-3
times on his forehead and then all the persons started assaulting
him, whereupon he became unconscious. Thereafter, Ram
Darshan Sah (P.W.2) was also assaulted and he received a lathi
blow on his hand which was inflicted by Awadhesh Sah
resulting in fracture of his hand. Thereafter, Shiv Nath Sah was
taken to Patna and he died there after six days. He has also
stated that earlier quarrel had taken place among the children
and on account of the said incident, assault had taken place.
P.W.3 had recognized the accused persons standing in the dock.
In his cross-examination, P.W.3 has stated that there was no
prior enmity and from the house of Ram Darshan, his house is
situated at a distance of 1-2 house. P.W.3 has further stated that
the accused persons had filed a counter case and his statement
was recorded after one month of the incident. P.W.3 has also
stated that the houses of the accused are situated at a distance of
15-20 houses of the place of occurrence. In his cross-
examination, P.W.3 has further stated that he cannot say as to
how many people were present at the place of occurrence when
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he had gone there and at that time, Shiv Nath Sah had not fallen
on the ground as also he had seen the injuries inflicted on the
body of Shiv Nath Sah, which had been inflicted at three places
and all the three injuries were distinct. He has stated that
immediately after he reached the place of occurrence, Shiv Nath
Sah had fallen down upon being hit by lathi. Shiv Nath was hit
by three blows of lathi. He has also stated that he cannot say as
to how many lathi blows were inflicted on Shiv Nath. He has
next stated that upon falling down, he did not receive injury on
his head. P.W.3 has also stated in his cross-examination that 17
people were assaulting by lathi and the same continued for 15-
20 minutes. He has stated that blood was not oozing out and
Shiv Nath had fallen on brick soling road but he had not seen
sign of lathi blow on his body. He has stated that one lathi blow
was inflicted on Ram Darshan (P.W.2), who was treated at
Duncan Hospital, Raxaul. Shiv Nath had become unconscious
and P.W.3 had not talked with him. As far as Ram Darshan is
concerned, his hand was plastered for one and a half month.
P.W.3 has stated that his statement was recorded after one
month. P.W.3 has finally stated that he cannot say as to after
how many days of the occurrence, Shravan (P.W.6) brother of
Suresh, had filed the case.
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12. P.W.4 Kisnawati Devi is the wife of the deceased and she
has stated in her deposition that the occurrence dates back to
about two years, the day being Wednesday at about 06:30 in the
morning when her husband was going to Gawas (male sitting
place). P.W. 4 has further stated that when she had gone in front
of the Gawas of the house of Ram Darshan (P.W.2), she saw that
17 persons had surrounded the deceased, namely, Mohan Sah,
Vijay Sah (Appellant No. 3), Ajay Sah (Appellant No. 4),
Jawahir Sah, Awadhesh Sah, Ashok Sah, Ramekbal Sah
(Appellant No. 6), Ram Sevak Sah, Laxman Sah (Appellant No.
1), Shiv Lal Sah, Om Prakash Sah, Mahavir Yadav, Ambika Sah,
Madan Sah, Panna Lal Sah, Inar Sah (Appellant No. 2) and
Sanjay Sah. Thereafter, Mahanth Sah (Appellant No. 5) had
ordered to kill stating that Shiv Nath has given statement against
him in the police station, whereupon Laxman Sah (Appellant
No.1) had hit her husband with Fatta (bamboo stick) on his head
and upon sustaining injury he fell down and then all the other
accused persons started assaulting him by lathi (bamboo stick).
Thereafter, Ram Darshan Sah (P.W.2) came there to save him
but he was also assaulted by lathi resulting in fracture of his
hand. P.W. 4 has further stated that she had also gone to save her
husband but she was pushed and then she had raised an alarm
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whereupon Mahendra (P.W.3), Santosh, Vinod and Suresh
(P.W.5) had arrived there and then the accused persons had fled
away. P.W.4 has next stated that her husband was taken to
Duncan Hospital for treatment where the Doctor had asked to
take him to another place and at that time her husband was not
conscious. P.W. 4 has also stated that her husband was then
taken to PMCH, Patna and during the course of treatment, he
died after 5-6 days. She had recognized the accused persons
standing in the dock. In her cross-examination, P.W. 4 has stated
that she had given her statement before the police and had taken
the name of Om Prakash and Ambika and had also stated in her
statement that Laxman (Appellant No.1) had assaulted her
husband twice by lathi. She has also stated that her statement
was recorded after two days of the incident and the police had
made enquiries from her only once. She has also stated that after
the occurrence she did not get any chance to talk to her husband.
She has stated that there was no enmity with her husband. She
has also stated that Gawas is situated at a distance of 2-3
bamboo length from the house of Ram Darshan (P.W.2) towards
the east. She has next stated that firstly, her brother-in-law
Suresh had filed a case against nine accused at Harpur Police
Station and after 6 days, Shravan Sah (P.W.6) had filed a case
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against 15 persons. P.W. 4 has also stated that on the date of
occurrence Shravan was not there and he came afterwards. She
has stated that near the place of occurrence, houses of Ram
Darshan (P.W.2) and Kishori Sah are situated. She has also
stated that she stays at her house and at Gawas where one
buffalo also stays. In paragraph No. 4 of her cross-examination,
P.W.4 has stated that at the time of going towards the place of
occurrence her husband was moving in the front and she was
following him and then her husband was surrounded by the
accused persons and assaulted, whereafter he had fallen down
on the ground. She has also stated that when she reached near
her husband, he had become unconscious and at that time, 20-25
people had surrounded her husband. She has next stated that
when the accused persons were assaulting him, Ram Darshan
(P.W.2) was not present there and when she had raised alarm
then Ram Darshan had arrived after 10 minutes. Thereafter,
Ram Darshan (P.W.2) had lifted Shiv Nath and taken him to
hospital. P.W.4 has also stated that before Ram Darshan (P.W.2)
had come, Santosh and others had already arrived. P.W.4 has
also stated that her husband had received three injuries on his
forehead. She has also stated that injuries were also present all
over the body. P.W.4 has also stated that blood had not fallen
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from the body of Shiv Nath and after his death she had seen his
dead body but she cannot say as to at what places injuries had
been inflicted since medicine had been applied on the injuries.
She has also stated that her husband died in the hospital and
after the occurrence, he had not regained consciousness.
13. P.W.5 Suresh Prasad, who is the brother of the deceased
and is the informant of this case has stated in his deposition that
the occurrence dates back to 24.01.2007 at about 06:30 am in
the morning when he was at the door of his house, Shiv Nath
was coming back after easing himself and when he had reached
at the door of the house of Ram Darshan, the accused persons,
namely, Laxman Sah (Appellant No. 1), Sri Lal Sah, Om
Prakash Sah, Mahanth Sah (Appellant No. 5), Bigan Sah, Ajay
Sah (Appellant No. 4), Ram Sevak Sah, Ramekbal Sah
(Appellant No. 6), Jawahir Sah, Awadhesh Sah, Ashok Sah,
Panna Lal Sah, Inar Sah (Appellant No. 2), Mangal Sah, Madan
Sah, Ambika Sah and Mahavir Yadav were already present there
from before, armed with lathi and fatha. Thereafter, Awadhesh
and Mahanth (Appellant No. 5) ordered to kill Shiv Nath since
he had called police, whereafter Laxman (Appellant No.1) had
given 2-3 lathi blows on the head of Shiv Nath and then he had
fallen down, whereupon all the accused persons had also
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assaulted him, however when Ram Darshan (P.W.2) had gone to
save him, he was also hit by lathi resulting in his right hand
being fractured. In the meantime, several persons had arrived
there resulting in the accused persons fleeing away. The
condition of the brother of P.W.5 had become serious, thus he
was taken to Duncan Hospital where the Doctor had referred
him to PMCH, Patna and then he was taken to PMCH, Patna
where he died after six days during the course of treatment.
P.W.5 has further stated that the fardbeyan was scribed by
Meghnath Prasad and after writing the same, he had read it over
to him and then he had put his signature over the same, which
he has identified and has been marked as Exhibit-1. PW-5 has
also stated that one day prior to the incident, the Officer-in-
Charge had come on account of quarrel having taken place in
between the children. In cross-examination, P.W.5 has stated
that a counter case has been filed by Vijay Sah in which he is an
accused. He has also stated that Shravan Sah had also filed a
case at Harpur Police Station and has also filed one case at
Patna in connection with the present incident on 31.01.2007.
P.W. 5 has next stated that the case was filed in the Police
Station on the basis of his written report, which was scribed by
Meghnath Prasad and was filed on 24.01.2007 at about 9:00 pm
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before the police. He has next stated that the Police Station is at
a distance of one and a half kilometers from his house and he
had filed written report against 17 persons. P.W.5 has also stated
in his cross-examination that Ram Darshan (P.W.2) is his
brother, witness Baijnath (P.W.1) is his cousin brother and Ram
Ekbal’s son is Santosh, both of whom are accused in the case
filed by him. P.W.5 has also stated in his cross-examination that
witness Ram Darshan (P.W.2) is his cousin brother. He has
stated that counter case was filed on the same day. P.W.5 has
next stated that near the place of occurrence, houses of Kishori
Sah, Bikhari Sah, Ram Surat Tiwari, Bahadur Pandit, Dhruv
Sah, Ramashish Mahto and Ramanand Raut are present,
however, they are not witnesses in the present case. In
paragraph-10 of his cross-examination, P.W.5 has stated that
when he reached at the place of occurrence, Shiv Nath Sah was
standing and there was no injury on his body, however after
receiving injury, he had fallen down and had been inflicted with
3-4 lathi blows on his head. He has also stated that all the
accused persons were assaulting Shiv Nath Sah by lathi
repeatedly, however he has stated that he cannot say as to how
many lathi blows were inflicted on Shiv Nath Sah. He has also
stated that lathi blows were inflicted on Shiv Nath Sah for five
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minutes, however he has stated that he cannot say as to whose
lathi had hit Shiv Nath Sah at which part of the body. He has
next stated that after being inflicted by lathi blows, Shiv Nath
Sah had become unconscious. He has also stated that blood was
not present on his clothes. Thereafter, Hardyal, Mahendar,
Vinod, Manoj, Devi Lal, Ramekbal and Santosh had lifted Shiv
Nath and taken him to Duncan hospital where the Doctor had
put bandage on the wounds. He has also stated that they had
gone to the hospital by Tata Sumo and Baijnath (P.W.1),
Shravan (P.W.6), Manoj and Devilal had also gone to the
hospital. P.W.5 had also gone up to Raxaul i.e Duncan hospital,
where the police had not recorded the statement and on the same
day, Shiv Nath was referred to PMCH, Patna. He has also stated
that Meghnath is resident of Harpur.
14. P.W.6 Shravan Sah has stated in his deposition that the
occurrence dates back to two years and five months at about
6:30 am in the morning when he was coming back after easing
himself and when he had reached near the house of Ram
Darshan Sah (P.W.2), the accused persons had caught hold of his
elder brother Shiv Nath Sah and Radhe Sah had ordered to kill
him, whereupon Laxman Sah (Appellant No. 1) had hit on the
head of Shiv Nath and then Mahanth Sah (Appellant No. 5),
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Ajay Sah (Appellant No. 4), Vijay Sah (Appellant No. 3), Ram
Sevak Sah, Ramekbal Sah (Appellant No. 6), Om Prakash Sah,
17 accused in all had also assaulted Shiv Nath, whereupon his
brother Shiv Nath had fallen down and then he was taken to
Duncan hospital where he was referred to PMCH, Patna and
there he died after six days. He has stated that on account of
altercation having taken place between the children of the
parties, the present occurrence has taken place. He has next
stated that the inquest report was prepared by the police, which
has been signed by him and the same has been marked as
Exhibit-2 with objection. P.W.6 has also stated that Suresh
Prasad (informant) is his brother and the deceased Shiv Nath
Sah was his elder brother. P.W.6 has also stated that he cannot
say as to against how many persons FIR has been lodged. P.W.6
has also stated that at the time when Suresh Prasad had filed the
case, he was outside and he had come to his house in the
evening at about 4:00 pm, whereafter he had then inquired about
the incident and then he had gone to Raxaul where Shiv Nath
was admitted, however he did not talk with Shiv Nath. P.W.6
has next stated that the informant is brother of the deceased and
after six days he had also filed a case at Patna. He has also
stated that he had not gone to Raxaul along with the deceased.
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He has stated that Shiv Nath Sah was taken to Raxaul in an
injured condition by Suresh Prasad (P.W.5), Baijnath and 2-4
other persons. He has stated that he had gone to see Shiv Nath
Sah at Raxaul hospital and when he was referred to Patna, he
had also gone to Patna. He has also stated that his statement was
recorded at 10:00 am in the morning and he had stated in his
statement made before the police that on account of Saraswati
Puja, quarrel had taken place in between the children leading to
the present incident. He has also stated that he was with the
deceased till his death and injuries were present all his body.
P.W.6 has further stated that postmortem of the deceased was
conducted at Patna. He has also stated that Devi Lal’s son is one
of the witness of this case.
15. P.W.7 Ganesh Ram is the Investigating Officer of the
present case and he has stated in his deposition that on
24.01.2007, he was posted as Officer-in-charge of Harpur Police
Station and on that day at 9:00 pm he had received the written
report of the informant, namely Suresh Prasad, whereafter he
had forwarded the same to Adapur Police Station for registration
of formal FIR and had also assumed the investigation of the said
case. P.W.7 has proved the formal FIR as also has identified the
signature of the Officer-in-charge, which has been marked as
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Exhibit-3. P.W.7 has also stated that after assuming
investigation, he had recorded the restatement and at 23:15
hours he had reached at the place of occurrence, whereafter he
had recorded the statement of witness, namely Ram Darshan
Sah (P.W.2). On 25.1.2007, he had again gone to village Harpur
at 9:20 am and had recorded the statement of the witnesses.
P.W.7 has stated that he had also recorded the statement of
witnesses, namely Baijnath Prasad (P.W.2), Ram Ekbal Sah,
Santosh Sah, Ramji Sah and Vinod Sah. Again on 26.01.2007,
he had gone to the house of Shiv Nath Sah and recorded the
statement of witnesses Kisnawati Devi (P.W.4), Baban Prasad,
Hira Lal Sah and Hardyal Sah. On 31.01.2007, during the
course of investigation, he came to know that treatment of Shiv
Nath Sah was being carried out at PMCH and he had died there
during the course of treatment on 30.01.2007. On 5.02.2007, he
had filed an application for adding Section 302 of the IPC. On
12.02.2007, he had received postmortem report of the deceased
and on 13.02.2007, the fardbeyan of the brother of the deceased
namely, Shravan Sah was recorded at PMCH by Police Officials
of Pirbahore Police Station, Patna, which was received by him.
On 22.02.2007, he had recorded the statement of Shravan Sah
(P.W.6) and Mahendra Sah (P.W.3). P.W.7 has next stated that he
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had filed charge-sheet against the accused persons under
Sections 147,148,149,341,323,325 and 302 of the IPC on
01.07.2007. In cross-examination, P.W.7 has stated that at 23:15
hours on the date of incident, he had seen Ram Darshan Sah
(P.W.2), however he has stated that he does not know as to
whether his treatment was done or not, nonetheless, he has
recorded his statement. P.W.7 has also stated that in the written
report, names of 9 accused persons have been written. In
paragraph No. 5 of his cross-examination, P.W.7 has stated that
according to paragraph No. 1 of the case diary, written report
was submitted on 24.01.2007 at 9:00 pm in the night and FIR
was registered on 25.01.2007 at 12:30 pm. P.W.7 has also stated
that during the course of investigation, he had not met Shiv
Nath. In paragraph No. 8 of his cross-examination, P.W.7 has
stated that in his restatement, informant has stated that Laxman
(Appellant No. 1) had inflicted 2-3 lathi blows on the head of
the deceased and he has also stated that after he had fallen
down, other accused persons namely, Mahanth (Appellant No.
5), Ramekbal (Appellant No. 6), Inar Sah (Appellant No. 2),
Vijay Sah (Appellant No. 3) and others had also assaulted the
deceased by lathi. He has also stated that during the course of
investigation, he had not received any injury report from
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Duncan Hospital. He has next stated that in paragraph No. 6 of
the case diary, he had recorded the statement of Ram Darshan
Sah (P.W.2), wherein he had stated that the deceased was being
assaulted by Laxman Sah (Appellant No. 1), Awadhesh Sah,
Mahanth Sah (Appellant No. 5), Vijay Sah (Appellant No. 3),
Ajay Sah (Appellant No. 4), Ramekbal Sah (Appellant No. 6),
Sanjay Sah, Inar Sah (Appellant No. 2) and Ram Sevak Sah,
who had surrounded the deceased. P.W.7 has also stated that in
the case diary, he has not mentioned about the injury sustained
by Ram Darshan Sah, however, after the deceased had fallen
down, Mahanth Sah (Appellant No. 5), Vijay Sah (Appellant
No. 3), Ajay (Appellant No. 4), Inar (Appellant No. 2) and
others had assaulted the deceased. P.W.7 has stated that in
paragraph No. 20, it has been recorded that Ramji Sah had
stated that when he reached the place of occurrence, all the
accused persons had fled away. In paragraph No. 30, the
statement of Kisnawati Devi has been recorded, wherein she has
stated that after she had raised alarm, other witnesses had
arrived and when Ram Darshan Sah had come to save the
deceased, Awadhesh had inflicted a lathi blow on his hand
resulting in fracture of his hand. She has stated that upon alarm
being raised by her other villagers namely, Santosh, Manoj etc.
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had arrived. P.W.7 has referred to paragraph No. 124 of the case
diary to state that counter case had also been filed.
16. P.W.8 Dr. Arun Kumar Singh is the Assistant Professor,
Forensic Department of Patna Medical College and Hospital.
P.W.8 has stated in his deposition that on 31.01.2007, he was
posted as Tutor in Patna Medical College and on the same day,
he had conducted the postmortem examination of the dead body
of Shivnath Sah, which had commenced at 1:00 pm. The
findings of P.W.8 are as follows:-
“External appearance
Average built rigor-mortis present all over. Foley’s
Catheter present. Right eye blacken.
Following ante-mortem, external and internal injuries
were found on the dead body of the deceased:-
No. 1- One healed abrasion 1 ½” x ½” on front of nose.
On dissection, there was hematoma under scalp in both
frontal, both parietal and both temporal region on head.
There was comminuted fracture of left frontal, left
temporal, left parietal, right parietal and right temporal
bones. There was separation of calomel suture also.
There was extradural hematoma 4 ½” x 3 ½” on left
frontal, left temporal, left parietal region of brain. Brain
was congested. Heart contained little blood on right side,
left empty. Stomach contained greenish fluid about 100
ml. All other viscera were found congested. Bladder
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Opinion
(1). Time since death 06 to 24 hours from the time of
postmortem examinations.
(2). Cause of death head injury.
(3). Nature of violence hard and blunt substance and its
impact.”
P.W.8 has further stated that the Postmortem report was
written by him and bears his signature, which he has identified
and has been marked as Exhibit- 4. In cross-examination, P.W.8
has stated that he had found one healed 1½” x ½” abrasion on
the outer part of the nose of the body of the deceased, however
he had not found any other external injury on the body of the
deceased. He has also stated that if assault is made by lathi on
head, external injury will not be inflicted, however it may also
be inflicted. In paragraph No. 7 of his cross-examination, P.W.8
has stated that in case of presence of lot of hair on the head or
cloth (turban) being present on the head, external injury is not
seen. He has also stated that it takes one month to resolve
hematoma. He has also stated that hematoma can be formed
even by falling on hard substance or hitting a hard substance.
P.W.8 has next stated that he has not found any external injury
on the head of the deceased and he had not stated in his
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postmortem report as to what type of weapon was used.
17. P.W.9 Dr. S.K. Paswan is the Doctor, who had examined
the injured witness, namely Ram Darshan Sah (P.W.2). P.W. 9
has stated in his deposition that on 25.01.2007, he was posted at
Primary Health Centre, Adapur and on that day at about 1:45
pm, he had examined Ram Darshan Sah and found the
following injuries:-
“(1). Swelling 3″ x 2” near lower end of lower ulna.
X-Ray A.P. & lateral view shows evidence of lower end of
ulna bone.
(2). Age of injuries- within 24 hours.
(3). Nature of injuries- Grievous in nature, hard and blunt
substance.”
P.W.9 has identified the injury report, which he has stated
is in his writing as also he has identified his signature made over
the same and the same has been marked as Exhibit No. 5. In
cross-examination, P.W.9 has stated that on the injury report,
neither thumb impression nor signature of the injured is present.
He has also stated that even if a person falls on his hand, such
type of injury can be caused. P.W.9 has next stated that in his
injury report, reference of X-Ray plate has not been made since
technician does not give his report and at the moment, X-Ray is
not present before him.
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18. After closing the prosecution evidence, the learned Trial
Court recorded the statement of the appellants on 24.07.2015
under Section 313 of the Cr.P.C. for enabling them to personally
explain the circumstances appearing in the evidence against
them, however they claimed themselves to be innocent,
nonetheless in reply to a question being put to them as to what
they have to say in their defense, they answered that they have
to say nothing.
19. The trial Court, upon appreciation, analysis and scrutiny
of the evidence adduced at the trial, has found the aforesaid
appellants guilty of the offence and has sentenced them to
imprisonment and fine, as noted above, by its impugned
judgment and order.
20. A bare perusal of the evidence of the prosecution reveals
that on 24.1.2007 at 6:30 am in the morning, the elder brother of
Suresh Prasad (the informant), namely Shiv Nath Prasad
(deceased), was coming after easing himself and when he had
reached at the door of the house of Ram Darshan Sah (P.W.2),
the appellants herein and other accused persons had surrounded
him, who were sitting there from before, whereafter Laxman
Sah (Appellant No. 1) had given lathi blows on the forehead of
the deceased Shiv Nath Prasad resulting in him sustaining
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injuries and falling down on the ground, whereupon the
Appellants No. 2 to 6 and others had also assaulted the deceased
Shiv Nath Prasad with lathi and fatta leading to the deceased
Shiv Nath Prasad becoming unconscious and then Ram Darshan
Sah (P.W. 2) had intervened to save the deceased, however the
accused person, namely Awadhesh Sah had given a lathi blow
on his right hand leading to his right hand being fractured. In
fact, other family members and co-villagers had also arrived at
the place of incident and had watched the occurrence. The
deceased Shiv Nath Prasad was taken to Duncan Hospital at
Raxaul, but he was referred to PMCH, Patna where he died
during the course of treatment after 5-6 days of the incident. At
this juncture, it would be relevant to mention that P.W.1
Baijnath Prasad, P.W. 2 Ram Darshan Sah, P.W.3 Mahendra
Sah, P.W. 4 Kisnawati Devi, P.W. 5 Suresh Prasad and P.W. 6
Shravan Sah are the eye-witnesses to the aforesaid occurrence
and they have deposed consistently with regard to the overtact
engaged in by the appellants herein and others, which has also
stood the test of cross-examination. It is a well-settled law that
minor discrepancies, if any, in the prosecution’s evidence being
insignificant in nature, cannot have any effect on the case of the
prosecution in case of overwhelming incriminating evidences
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adduced at the trial to establish the guilt of the appellants.
21. The prosecution’s narrative in the FIR is fully supported
by the ocular evidence adduced at the trial and the ocular
evidence is corroborated by the medical evidence, inasmuch as
the Doctor has categorically stated in his evidence that the cause
of death is head injury caused by hard and blunt substance.
22. In fact, the appellants have not been able to show any
material contradiction in the statement of the witnesses,
inasmuch as though the statements made by the witnesses under
Section 161 Cr.P.C. were put to P.W.7 Ganesh Ram
(Investigating Officer) to elicit his response, however a bare
perusal of the evidence of P.W.7 would show that as far as P.W.
1 is concerned, no contradiction could be extracted, inasmuch as
P.W.7 has stated in his evidence that P.W.1 had told him that
Laxman Sah (Appellant no.1) had inflicted 2-3 lathi blows on
the head of the deceased and when he fell down, others had also
assaulted him by lathi and fatta. As far as P.W.2 is concerned,
P.W.7 has stated in his evidence that he had stated before him
that the deceased was assaulted by the appellants. As regards
P.W. 4 (Kisnawati Devi), P.W.7 has stated in his evidence that
when she had raised an alarm, other witnesses had arrived.
However, as far as P.W.3, P.W.5 and P.W.6 are concerned, their
Patna High Court CR. APP (DB) No.1160 of 2016 dt.06-03-2025
41/58
statement made under Section 161 Cr.P.C. were not put to P.W.
7 (Investigating Officer) to elicit his response. Thus, considering
the ocular evidence of the prosecution witnesses, which has
stood the test of cross-examination, in our opinion, minor
discrepancies in their evidence cannot affect the prosecution
case, hence the prosecution witnesses do not appear to be
untrustworthy.
23. Now coming to the submissions made by the learned
Senior Counsel for the appellants, we find that he has argued
vehemently that the written report dated 24.1.2007, submitted
by the informant leading to lodging of the FIR on 25.1.2007 is
not the earliest version since firstly, the same is not in his
writing and secondly, the scribe of the said written report,
namely Meghnath Prasad has not been examined by the
prosecution, apart from the fact that the written report dated
24.1.2007 does not even contain any recital to the effect that the
FIR was read over to the informant, who had understood the
same and had then put his signature after finding the same to be
correct. We find that unnecessary efforts have been made to
create a lacuna, but the fact remains that the informant, namely
Suresh Prasad (P.W.5), has stated in his evidence that the written
report was though scribed by Meghnath Prasad, but the same
Patna High Court CR. APP (DB) No.1160 of 2016 dt.06-03-2025
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was read over to him and then after understanding the same, he
had put his signature over the same, which has duly been
identified and has been marked as Exhibit-1. Another aspect of
the matter is that no question has been put to the witness,
especially to the informant i.e. P.W.5 in cross-examination
regarding untruthfulness of the written report and that the same
is fabricated, hence the unchallenged part of the evidence of a
witness has to be relied upon. It is a well-settled law that in
absence of question being put to the witness in cross-
examination to a particular fact and circumstance, the
unchallenged part of the evidence of such a witness is to be
relied upon. Reference, in this connection, be had to a judgment,
rendered by the Hon’ble Apex Court in the case of Gian Chand
& Others vs. State of Haryana, reported in (2013) 14 SCC 420,
as also to a judgment rendered by the Hon’ble Apex Court in the
case of Laxmibai vs. Bhagwantbuva, reported in (2013) 4 SCC
97, paragraph no. 40 whereof is reproduced herein below:-
“40. Furthermore, there cannot be any dispute with
respect to the settled legal proposition, that if a party
wishes to raise any doubt as regards the correctness of
the statement of a witness, the said witness must be given
an opportunity to explain his statement by drawing his
attention to that part of it, which has been objected to by
the other party, as being untrue. Without this, it is not
Patna High Court CR. APP (DB) No.1160 of 2016 dt.06-03-2025
43/58possible to impeach his credibility. Such a law has been
advanced in view of the statutory provisions enshrined in
Section 138 of the Evidence Act, 1872, which enable the
opposite party to cross-examine a witness as regards
information tendered in evidence by him during his initial
examination-in-chief, and the scope of this provision
stands enlarged by Section 146 of the Evidence Act,
which permits a witness to be questioned, inter alia, in
order to test his veracity. Thereafter, the unchallenged
part of his evidence is to be relied upon, for the reason
that it is impossible for the witness to explain or
elaborate upon any doubts as regards the same, in the
absence of questions put to him with respect to the
circumstances which indicate that the version of events
provided by him is not fit to be believed, and the witness
himself, is unworthy of credit. Thus, if a party intends to
impeach a witness, he must provide adequate opportunity
to the witness in the witness box, to give a full and proper
explanation. The same is essential to ensure fair play and
fairness in dealing with witnesses.”
24. We also find that as far as lodging of FIR on the basis of
written report dated 24.1.2007 is concerned, there is no lacuna,
inasmuch as after the police had received the written report
dated 24.1.2007 at 9:00 pm, the same was forwarded to the
Officer-in-Charge, Harpur (Adapur) Police Station, whereupon
the FIR was immediately registered on 25.1.2007 at 12:30 hours
and then, the same was sent to the Court on 27.1.2007. Thus, we
Patna High Court CR. APP (DB) No.1160 of 2016 dt.06-03-2025
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find that the argument advanced by the learned Senior Counsel
for the appellants that the earliest version of the incident in
question has been withheld merits no consideration.
25. The learned Senior Counsel for the appellants has next
tried to impeach the credibility of the prosecution witnesses and
has submitted that they are actually not eye-witnesses, inasmuch
as they had arrived at the place of occurrence much after the
occurrence had taken place. It has been submitted that as far as
P.W. 4 Kisnawati Devi is concerned, she has stated in her
evidence that after she raised hulla, Mahendra Sah (P.W.3),
Santosh, Binod and Suresh (P.W.5) had arrived there. It has also
been submitted that P.W.4 has stated in her evidence that when
she had reached the place of occurrence, her husband had
become unconscious, meaning thereby that she was also not
present at the time her husband was being assaulted. As far as
P.W.6 Shravan Sah is concerned, it has been submitted that he
has stated in his evidence that when Suresh Sah had filed the
case he was outside and had returned home in the evening, thus,
P.W.6 is also not an eye-witness. It is also submitted that most of
the witnesses have been examined by the police after lapse of
considerable time of the occurrence and moreover, the
prosecution story does not corroborate with the medical
Patna High Court CR. APP (DB) No.1160 of 2016 dt.06-03-2025
45/58
evidence. It is also submitted that the motive of the occurrence
has not been proved, thus in nutshell, the case of the appellants
is that the evidence of the prosecution witness would show that
none of them are eye-witnesses, hence their evidence cannot be
said to be credible or trustworthy, thus the conviction of the
appellants is fit to be set aside. We find from a bare perusal of
the evidence of the prosecution that the prosecution witnesses
have deposed consistently with regard to the overtact engaged in
by the appellants and others, which has also stood the test of
cross-examination, hence minor discrepancies in their evidence
cannot effect the prosecution case, especially since we have
already come to a conclusion that the prosecution witnesses do
not appear to be untrustworthy. As far as P.W. 4 is concerned,
she has stated in her evidence that while her husband was
moving in front she was following him and she had seen the
appellants assaulting her deceased husband, which has also
stood the test of cross-examination, thus minor contradiction
would not impact the case of the prosecution. As far as P.W. 5
i.e. the informant, Suresh Prasad, is concerned he has also stated
in his evidence that he had witnessed the incident and had seen
the appellants assaulting the deceased Shiv Nath, which has also
stood the test of cross-examination. As regards P.W.6 Shravan
Patna High Court CR. APP (DB) No.1160 of 2016 dt.06-03-2025
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Sah, we find that he has consistently stated in his evidence that
after he was coming back after easing himself and had reached
the house of P.W. 2, the appellants and others had caught hold of
the deceased Shiv Nath and then the Appellant No. 1 had hit on
the head of the deceased, whereafter the other accused persons
had assaulted the deceased, however the appellants are seeking
to take advantage of the statement made by him in his evidence
to the effect that he was outside when Suresh had filed case but
we find that the incident had taken place at 6:30 am in the
morning of 24.1.2007, whereafter the written report was filed at
9:00 pm on the same day, hence there is no discrepancy in the
statement of P.W.6. Thus, we find that the appellants have failed
to show that P.W.1, P.W.2, P.W.3, P.W.4, P.W.5 and P.W.6 are not
eye-witness to the incident in question. In fact, all the
prosecution witnesses have deposed consistently and there is no
material contradiction in their evidence, apart from the fact that
they have also stated in their evidence to be eye-witness to the
alleged occurrence, hence we find that the evidence of
prosecution witnesses are credible and trustworthy being
consistent and cogent, thus, is fit to be relied upon to establish
the guilt of the appellants. It is a well-settled law that in case,
direct evidence is available, motive does not play much role. We
Patna High Court CR. APP (DB) No.1160 of 2016 dt.06-03-2025
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also find that the witnesses have consistently deposed that the
accused Awadhesh Sah had assaulted P.W. 2 Ram Darshan Sah
on his right hand leading to his right hand being fractured. We
further find that the ocular evidence is fully supported by the
medical evidence.
26. Yet another aspect of the matter, which has been
canvassed by the learned Senior Counsel for the appellants is
that though there is one external injury on the body of the
deceased, but 12 accused persons have been convicted and even
the Appellant No. 1 had not engaged in repeated blow, hence he
had no intention to kill the deceased, thus the present case
would fall within the ambit of culpable homicide, not amounting
to murder. In this regard we find by going through the evidence
of P.W. 8 Dr. Arun Kumar Singh, who had conducted the
postmortem examination of the dead body of the deceased Shiv
Nath Sah that though externally one healed abrasion 1 ½” x ½”
was found on front of nose, however on dissection, there was
hematoma under scalp in both frontal, both parietal and both
temporal region on head. There was comminuted fracture of left
frontal, left temporal, left parietal, right parietal and right
temporal bones. There was extradural hematoma 4 ½” x 3 ½” on
left frontal, left temporal, left parietal region of brain and brain
Patna High Court CR. APP (DB) No.1160 of 2016 dt.06-03-2025
48/58was congested. Thus several grievous injuries were found on
dissection.
In fact, P.W.8 has opined that the cause of death is head
injury caused by hard and blunt substance. We also find that the
prosecution witnesses have consistently deposed that 2-3 lathi
blows were inflicted by the Appellant No. 1 resulting in the
deceased sustaining injuries and falling down on the ground,
whereafter all the other appellants and other accused persons
had assaulted the deceased by lathi and fatta. Thus, we find that
on account of Appellant No. 1 having repeatedly assaulted the
deceased by lathi on his forehead resulting in hematoma and
fracture at several places on the head / skull, as is apparent from
the postmortem report, the deceased Shiv Nath Prasad died,
hence the deceased was not only assaulted brutally by Appellant
No. 1 but also by others including the appellants No. 2 to 6.
Nonetheless, we find that it is a settled law that in cases where a
large number of accused persons constituting an unlawful
assembly are alleged to have attacked and killed one or more
persons, it is not necessary that each of the accused should
inflict fatal injuries or any injury at all and by invoking Section
149, the members of an unlawful assembly can be punished on
the ground of vicarious liability even though they are not
Patna High Court CR. APP (DB) No.1160 of 2016 dt.06-03-2025
49/58accused of having inflicted fatal injuries. Reference, in this
connection, be had to a judgment, rendered by the Hon’ble Apex
Court in the case of Nitya Nand vs. State of Uttar Pradesh &
Anr., reported in (2024) 9 SCC 314, paragraphs no. 41 to 48 are
reproduced herein below:-
“41. Section 141 IPC defines “unlawful assembly”. It
says an assembly of five or more persons is designated as
unlawful assembly if the common object of the persons
composing that assembly is to commit an illegal act by
means of criminal force.
42. As per Section 148 IPC which deals with rioting
armed with deadly weapon, whoever is guilty of rioting,
being armed with a deadly weapon or with anything
which, used as weapon of offence, is likely to cause
death, shall be punished with imprisonment of either
description for a term which may extend to three years,
or with fine, or with both. “Rioting” is defined in Section
146IPC. As per the said definition, whenever force or
violence is used by an unlawful assembly, or by any
member thereof, in prosecution of the common object of
such assembly, every member of such assembly is guilty
of the offence of rioting.
43. This brings us to the pivotal section which is
Section 149IPC. Section 149IPC says that every member
of an unlawful assembly shall be guilty of the offence
committed in prosecution of the common object. Section
149IPC is quite categorical. It says that if an offence is
Patna High Court CR. APP (DB) No.1160 of 2016 dt.06-03-2025
50/58committed by any member of an unlawful assembly in
prosecution of the common object of that assembly, or
such as the members of that assembly knew to be likely to
be committed in prosecution of that object, every person
who, at the time of committing of that offence, is a
member of the said assembly; is guilty of that offence.
Thus, if it is a case of murder under Section 302IPC, each
member of the unlawful assembly would be guilty of
committing the offence under Section 302 IPC.
44. In Krishnappa v. State of Karnataka [Krishnappa
v. State of Karnataka, (2012) 11 SCC 237 : (2013) 1 SCC
(Cri) 621] , this Court while examining Section 149IPC
held as follows : (SCC p. 243, paras 20-21)“20. It is now well-settled law that the provisions of
Section 149IPC will be attracted whenever any
offence committed by any member of an unlawful
assembly in prosecution of the common object of
that assembly, or when the members of that
assembly knew that offence is likely to be committed
in prosecution of that object, so that every person,
who, at the time of committing of that offence is a
member, will be also vicariously held liable and
guilty of that offence. Section 149IPC creates a
constructive or vicarious liability of the members of
the unlawful assembly for the unlawful acts
committed pursuant to the common object by any
other member of that assembly. This principle ropes
in every member of the assembly to be guilty of an
offence where that offence is committed by any
Patna High Court CR. APP (DB) No.1160 of 2016 dt.06-03-2025
51/58member of that assembly in prosecution of common
object of that assembly, or such members or
assembly knew that offence is likely to be committed
in prosecution of that object.
21. The factum of causing injury or not causing
injury would not be relevant, where the accused is
sought to be roped in with the aid of Section
149IPC. The relevant question to be examined by the
court is whether the accused was a member of an
unlawful assembly and not whether he actually took
active part in the crime or not.”
45. Thus, this Court in Krishnappa
case [Krishnappa v. State of Karnataka, (2012) 11 SCC
237 : (2013) 1 SCC (Cri) 621] held that Section 149 IPC
creates a constructive or vicarious liability of the
members of the unlawful assembly for the unlawful acts
committed pursuant to the common object by any other
member of that assembly. By application of this principle,
every member of an unlawful assembly is roped in to be
held guilty of the offence committed by any member of
that assembly in prosecution of the common object of that
assembly. The factum of causing injury or not causing
injury would not be relevant when an accused is roped in
with the aid of Section 149IPC. The question which is
relevant and which is required to be answered by the
court is whether the accused was a member of an
unlawful assembly and not whether he actually took part
in the crime or not.
46. As a matter of fact, this Court in Vinubhai
Patna High Court CR. APP (DB) No.1160 of 2016 dt.06-03-2025
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Ranchhodbhai Patel v. Rajivbhai Dudabhai
Patel [Vinubhai Ranchhodbhai Patel v. Rajivbhai
Dudabhai Patel, (2018) 7 SCC 743 : (2018) 3 SCC (Cri)
340] has reiterated the position that Section 149IPC does
not create a separate offence but only declares vicarious
liability of all members of the unlawful assembly for acts
done in common object. This Court has held : (SCC pp.
752-53 & 756, paras 20, 22 & 34)
“20. In cases where a large number of accused
constituting an “unlawful assembly” are alleged to
have attacked and killed one or more persons, it is
not necessary that each of the accused should inflict
fatal injuries or any injury at all. Invocation of
Section 149 is essential in such cases for punishing
the members of such unlawful assemblies on the
ground of vicarious liability even though they are
not accused of having inflicted fatal injuries in
appropriate cases if the evidence on record justifies.
The mere presence of an accused in such an
“unlawful assembly” is sufficient to render him
vicariously liable under Section 149IPC for causing
the death of the victim of the attack provided that the
accused are told that they have to face a charge
rendering them vicariously liable under Section
149IPC for the offence punishable under Section
302IPC. Failure to appropriately invoke and apply
Section 149 enables large number of offenders to get
away with the crime.
22. When a large number of people gather together
Patna High Court CR. APP (DB) No.1160 of 2016 dt.06-03-2025
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(assemble) and commit an offence, it is possible that
only some of the members of the assembly commit
the crucial act which renders the transaction an
offence and the remaining members do not take part
in that “crucial act” — for example in a case of
murder, the infliction of the fatal injury. It is in those
situations, the legislature thought it fit as a matter of
legislative policy to press into service the concept of
vicarious liability for the crime. [Ramu
Gope v. State of Bihar, 1968 SCC OnLine SC 74,
para 5 : AIR 1969 SC 689, p. 692, para 5:”5. …
When a concerted attack is made on the victim by a
large number of persons it is often difficult to
determine the actual part played by each offender.
But on that account for an offence committed by a
member of the unlawful assembly in the prosecution
of the common object or for an offence which was
known to be likely to be committed in prosecution of
the common object, persons proved to be members
cannot escape the consequences arising from the
doing of that act which amounts to an offence.”]
Section 149IPC is one such provision. It is a
provision conceived in the larger public interest to
maintain the tranquillity of the society and prevent
wrongdoers (who actively collaborate or assist the
commission of offences) claiming impunity on the
ground that their activity as members of the
unlawful assembly is limited.
34. For mulcting liability on the members of an
Patna High Court CR. APP (DB) No.1160 of 2016 dt.06-03-2025
54/58
unlawful assembly under Section 149, it is not
necessary that every member of the unlawful
assembly should commit the offence in prosecution
of the common object of the assembly. Mere
knowledge of the likelihood of commission of such
an offence by the members of the assembly is
sufficient. For example, if five or more members
carrying AK 47 rifles collectively attack a victim and
cause his death by gunshot injuries, the fact that one
or two of the members of the assembly did not in fact
fire their weapons does not mean that they did not
have the knowledge of the fact that the offence of
murder is likely to be committed.”
47. It is true that there are certain lacunae in the
prosecution. The scribe Kuldeep was not examined.
Similarly, the younger brother Laxmi Narain was not
examined though it has come on record that Laxmi
Narain was killed in the year 1993 and in that case one of
the accused is the appellant himself. It is also true that
neither any country-made pistol was recovered nor any
cartridge, empty or otherwise, recovered. However, the
appellant has been roped in with the aid of Section
149IPC. Therefore, as held by this Court in Yunis v. State
of M.P. [Yunis v. State of M.P., (2003) 1 SCC 425 : 2003
SCC (Cri) 341] , no overt act is required to be imputed to
a particular person when the charge is under Section
149IPC; the presence of the accused as part of the
unlawful assembly is sufficient for conviction. It is clear
from the evidence of PW 1 and PW 2 that the appellant
Patna High Court CR. APP (DB) No.1160 of 2016 dt.06-03-2025
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was part of the unlawful assembly which committed the
murder. Though they were extensively cross-examined,
their testimony in this regard could not be shaken.
48. In view of what we have discussed above, we have
no doubt in our mind that the trial court had rightly
convicted the appellant under Section 148IPC read with
Sections 302/149IPC and that the High Court was
justified in confirming the same. The question framed in
para 16 above is therefore answered in the affirmative.”
27. We thus find from the evidence of the prosecution
witnesses that all the accused persons including the Appellants
No. 2 to 6 were members of unlawful assembly and the offence
in question was primarily committed by Appellant No. 1 leading
to death of Shiv Nath Prasad, as also by the other accused
persons including the Appellants No. 2 to 6, who are members
of the unlawful assembly, in prosecution of the common object
of that assembly, hence all the accused persons including the
appellants, who were member of the said unlawful assembly at
the time of commission of the offence in question, are definitely
guilty of that offence i.e. the one under Section 302 of the IPC
by invocation of Section 149 of the IPC. Thus, even though the
deceased had died primarily on account of fatal blow inflicted
by the Appellant No. 1, nonetheless the appellants No. 2 to 6
and other accused persons are liable to be convicted under
Patna High Court CR. APP (DB) No.1160 of 2016 dt.06-03-2025
56/58
Section 302 of the IPC with the aid of Section 149 IPC, keeping
in view the law laid down by the Hon’ble Apex Court in the
case of Nitya Nand (supra). Now coming to the conviction of
the appellants under Section 147 IPC, this Court finds that
rioting has been defined under Section 146 of the IPC, which
reads as follows:-
“146. Rioting- Whenever force or violence is used by an
unlawful assembly, by any members would be, in
prosecution of the common object of such assembly, every
member of such assembly is guilty of the offence of
rioting.”
Section 141 IPC defines unlawful assembly as an
assembly of five or more persons, if the common object of the
persons composing that assembly is to commit an illegal act by
means of criminal force. Section 147 provides for punishment of
rioting. This Court finds, considering the evidence led by the
prosecution that the appellants have rightly been convicted
under Section 147 IPC. We also find that the present case will
not fall within the ambit of Section 304 Part-II of the IPC since
the Appellant No. 1 had given repeated lathi blows on the head
of the deceased leading to his subsequent death and as far as the
Appellants No. 2 to 6 are concerned, they being members of
unlawful assembly, they have rightly been convicted under
Patna High Court CR. APP (DB) No.1160 of 2016 dt.06-03-2025
57/58
Section 302 of the IPC with the aid of Section 149 of the IPC.
28. Considering the facts and circumstances of the present
case and the evidence, which has been brought on record to
prove the allegations levelled against the appellants beyond pale
of any reasonable doubt as well as considering the credibility
and trustworthiness of the evidence of the prosecution, which
has not been discredited during the course of cross-examination
coupled with the postmortem report and for the reasons
mentioned hereinabove, we find that there is no reason to create
any doubt in our minds. We have examined the materials
available on record and do not find any apparent error in the
impugned judgment of conviction and order of sentence, hence,
the same does not require any interference.
29. Accordingly, the present appeal i.e. Criminal Appeal (DB)
No. 1160 of 2016 stands dismissed.
30. In view of the fact that the present appeal has stood
dismissed, the bail bonds of Appellants No. 2 to 6, who were
granted bail during the pendency of the present appeal by an
order dated 21.12.2016, are hereby cancelled and they are
directed to surrender before the learned Trial Court for being
sent to jail for serving the remaining sentence. As far as
Appellant No. 1, namely, Laxman Sah, is concerned, he is
Patna High Court CR. APP (DB) No.1160 of 2016 dt.06-03-2025
58/58
already in custody, hence, he is directed to serve the remaining
sentence.
I agree. (Mohit Kumar Shah, J)
Nani Tagia, J :
(Nani Tagia, J)
Ajay/-
AFR/NAFR AFR
CAV DATE 10.02.2025
Uploading Date 06.03.2025
Transmission Date 06.03.2025
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