Patna High Court
Mahendra Singh vs The State Of Bihar on 24 January, 2025
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad, Ashok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.509 of 2024
Arising Out of PS. Case No.-147 Year-2005 Thana- BAKHTIYARPUR District- Patna
======================================================
Mahendra Singh Son of Late Pokhi Singh Resident of Village- Manjhauli,
P.S- Bakhtiyarpur , Present P.S- Salimpur , Dist- Patna
... ... Appellant
Versus
1. The State of Bihar
2. Dilip Singh Son of Sone Lal Singh Resident of Village- Manjhauli, P.S-
Salimpura, Dist- Patna
3. Shailendra Singh Son of Sone Lal Singh Resident of Village- Manjhauli,
P.S- Salimpura, Dist- Patna
4. Satish Singh Son of Jugeshwar Singh Resident of Village- Manjhauli, P.S-
Salimpura, Dist- Patna
5. Rishi Singh Son of Jugehwar Singh Resident of Village- Manjhauli, P.S-
Salimpura, Dist- Patna
6. Brijballabh Singh Son of Jugeshwar Singh Resident of Village- Manjhauli,
P.S- Salimpura, Dist- Patna
7. Sone Lal Singh Son of Late Siri Singh Resident of Village- Manjhauli, P.S-
Salimpura, Dist- Patna
... ... Respondens
======================================================
Appearance :
For the Appellant/s : Mr. Rudal Prasad, Advocate
For the Respondent/s : Mr. Sujit Kumar Singh, APP
For Resp. Nos. 2 to 7 : Mr. Vijay Anand, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 24-01-2025
This appeal has been filed against the judgment of
acquittal dated 12.02.2024 passed by learned Additional District &
Sessions Judge-V, Barh, District-Patna (hereinafter referred to as
the 'learned trial court') in Sessions Trial No. 297 of 2009, arising
out of Bakhtiyarpur P.S. Case No. 147 of 2005 by which the
Patna High Court CR. APP (DB) No.509 of 2024 dt.24-01-2025
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learned trial court has acquitted respondent nos. 2 to 7 of the
charges under Sections 307 /149, 147, 148, 324/149 of the Indian
Penal Code (in short 'IPC') and Section 27 of the Arms Act and
convicted them for the offences punishable under Sections 148 and
323/149 IPC.
2. Earlier vide order dated 08.05.2024, this Court called
for the trial court records which have been received and are
available on the record.
3. From the report as contained in Memo No. 38 dated
06.01.2025
of the Superintendent of Police (Rural), Patna it
appears that respondent no.7 namely Sone Lal Singh died during
pendency of the appeal. Thus, this appeal against respondent no.7
stands abated.
Prosecution case
4. The prosecution story is based on the written report
dated 09.06.2005 of Mahendra Singh submitted to the SHO,
Bakhtiyarpur Police Station. In his written report, the informant
has stated that west to his house, a barren land of Jugeshwar Singh
is situated. The informant has stated that construction of western
side wall was going on and for this purpose rods were erected. On
09.06.2005, in the morning at 8:00 AM, Jugeshwar Singh and
Sone Lal Singh asked the informant why he was erecting balcony
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(chhazza) on his land on which the informant asked them to get the
land measured then it is alleged that Jugeshwar Singh and Sone
Lal Singh started abusing him and brought gun from his house.
The other accused persons also brought arms from their houses. It
is alleged that Mundrika Singh and Dilip Singh, with an intention
to kill, fired at the informant and his son as a result of which the
informant received injury on his forehead, chest and leg and his
son Rakesh Kumar sustained injury on his left shoulder. The
nearby people have witnessed the occurrence and they can depose
on asking.
5. On the basis of this written application, FIR being
Bakhtiyarpur P.S. Case No. 147 of 2005 has been registered under
Sections 147, 148, 149, 324 and 307 IPC and Section 27 of the
Arms Act against accused persons, namely, (1) Jugeshwar Singh,
(2) Sone Lal Singh, (3) Dilip Singh (4) Shailendra Singh, (5)
Satish Singh, (6) Rishi Singh, (7) Brij Ballabh Singh and (8)
Mundrika Singh. After completion of investigation, police
submitted charge-sheet bearing number 193/05 dated 25.10.2005
against accused Dilip Singh, Shailendra Singh, Rishi Singh, Brij
Ballabh Singh and Satish Singh. Upon submission of charge-sheet,
the learned Magistrate took cognizance vide order dated
29.10.2005 of the offences under Sections 147, 148, 149, 324 and
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307 IPC. The two accused namely Mundrika Singh and Yugeshwar
Singh were not sent up for trial. Thereafter, a supplementary
charge-sheet bearing No. 174 of 2006 dated 05.07.2006 was filed
against Sone Lal Singh and the learned Magistrate took
cognizance of the offence under Sections 147, 148, 149, 324 and
307 IPC. Finding that the offences of which cognizance was taken
by the learned Magistrate are triable by the court of Sessions, the
learned Magistrate committed the records to the court of Sessions
vide order dated 22.08.2006. On receipt of the records, Sessions
Trial No. 297 of 2009 was registered where charges were framed
on 01.04.2015 under Section 307/149, 147, 148, 324/149 IPC and
27 of the Arms Act and explained to them to which they denied.
6. During trial, the prosecution produced as many as
nine witnesses and proved some documentary evidences. The full
description of the witnesses and the documents proved on behalf
of the prosecution are being provided hereunder for a ready
reference:-
List of Prosecution Witnesses
PW-1 Jayabind Kumar
PW-2 Mukesh Kumar
PW-3 Rakesh Kumar
PW-4 Mahendra Singh (informant)
PW-5 Dr. Vijai Kumar Verma (Medical Officer)
PW-6 Ravindra Nath Chaturvedi (Researcher)
PW-7 Raju Kumar
PW-8 Dr. Vinay Kumar (Associate Officer, P.M.C.H, Patna)
Patna High Court CR. APP (DB) No.509 of 2024 dt.24-01-2025
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List of Exhibits produced on behalf of the Prosecution
Ext- 1 Sign. of information on Fardbeyan
Ext- 2 Injury Report of Rakesh Kr.
Ext- 2/1 Injury of Mahendra Singh
Ext- 3 Sign. of I/O R.N. Chaturvedy on formal F.I.R.
Ext- 4 Forwarding of BKP Case No. 147/05
Ext- 5 E.S.R No. 3069 of injured Mahendra Singh
Ext- 6 E.S.R. No. 3070 of Injured Rakesh Kumar
Ext-7 Attested Copy of Injury Report of Mahendra Singh
Ext- 8 Attested Copy of Injury Report of Rakesh Kumar
Ext- 5/1 Word "XPM 3836 Multiple Metallic foreign body"
written on Ext. 5
Ext- 6/1 Word "XPM 3840 Multiple Matellic foreign body
in left infra scapular" written on Ext. 6
Ext- 3/1 Formal F.I.R of Bakhtiyarpur P.S. No. 147/05
Findings of the Learned Trial Court
7. Learned trial court after analyzing the materials in the
form of oral and documentary evidences available on the record
found that both the sides indulged in dispute in regard to
projection of balcony in which the informant was claiming that he
had projected the iron rods for constructing balcony up to his land
but the defence was claiming that the projection was in their land
which was protested by the defence side. In the said dispute,
informant was asking to get the land measured but the accused
Sone Lal Singh and Jugeshwar Singh went to their house abusing
and came with double-barrel gun and with them Mundrika and
Dilip Singh also came with double-barrel gun. Shailendra Singh,
Jugeshwar Singh with bhala, Satish, Rishi Singh and Brij Ballabh
Patna High Court CR. APP (DB) No.509 of 2024 dt.24-01-2025
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informant Mahendra Singh and his son Rakesh Kumar on the order
of Sone Lal and Jugeshwar which hit in the left shoulder of Rakesh
Kumar and Mahendra Singh received six bullet injuries. From the
evidence of first Doctor, Dr. Vijay Kumar Verma (PW-5) the
learned trial court noticed the injury to be simple and he kept the
opinion reserved and referred the injured Rakesh Kumar to PMCH
and from the injury report of Mahendra Singh injury was shown to
be lacerated and simple of which the opinion was also kept
reserved and he was referred to PMCH also. Dr. Vinay Kumar
(PW-8) who examined the injured in PMCH has proved the injury
report of the informant which was marked as Exhibit ‘7’ and
further he proved the injury report of injured Rakesh Kumar which
was marked as Exhibit ‘8’. The learned trial court found from the
cross-examination of this witness that there was no mentioning of
extraction of bullet from the injured in the injury report. Learned
trial court opined that since no bullet was produced before the
court so it was believed that no bullet was extracted from the body
of injured.
8. Learned trial court after analysing the evidence came
to the finding that the doctors have not supported the factum of
firing shot upon the injured as no seizure list of bullet was
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made has also not been seized.
9. Learned trial court reached to the conclusion that the
prosecution has failed to prove charge of 307 IPC and 324 IPC
against the accused rather the prosecution has been able to prove
the charge under Section 148, 323/149 IPC against the accused and
held them guilty accordingly.
Submissions on behalf of the Appellant
10. Learned counsel for the appellant has assailed the
impugned judgment on various grounds. It is submitted that the
informant of this case is Mahendra Singh who has deposed as PW-
4 in course of trial. In his written application, he has stated that the
occurrence took place at 8:00 AM when he was erecting the
boundary wall and had done the centering work for chhajja
(balcony) at the top of the boundary wall. The informant has stated
that Jugeshwar Singh and Sone Lal Singh first objected to the said
construction whereupon the informant asked them to get done the
measurement but Jugeshwar Singh and Sone Lal started abusing
him. He has stated that Sone Lal and Dileep Singh, son of Sone
Lal Singh, came armed with double-barrel gun in their hand,
Shailendra Singh, son of Sone Lal Singh came armed with spear
and the other accused persons, namely, Satish Singh, Rishi Singh,
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Brijballabh Singh were armed with lathi. According to the
informant, Mundrika Singh and Dileep Singh, both sons of Sone
Lal Singh fired from the double-barrel gun upon the informant and
his son. The informant suffered the shot at his forehead, chest and
leg whereas his son Rakesh Kumar had suffered pellet (chharra)
on his left shoulder. It is submitted that in his examination-in-
chief, the informant has supported the prosecution case. He has
stated that Sone Lal Singh, Jugeshwar Singh, Dileep Singh and
Mundrika Singh were armed with gun. Jugeshwar Singh and Sone
Lal Singh asked the other accused persons to kill whereafter with
an intention to kill, Dileep Singh and Mundrika Singh fired upon
him. He has reiterated that he and his son had suffered firearm
injuries. He has stated that both the accused persons, namely,
Dileep Singh and Mundrika Singh had fired at the same time. He
had fallen down after suffering the shot, his eldest son had taken
him to his house. He has further stated that he was first taken to
the police station then to the hospital. He has proved his signature
on the written application which was written by Daroga Ji. He has
proved his signature as (Exhibit ‘1’). He had remained in PMCH
for five days.
11. Learned counsel submits that in his cross-
examination, this witness has remained intact and has reiterated
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that he and his sons had suffered firearm injury. He was suggested
in course of his cross-examination by the defence that no
occurrence had taken place and neither he nor his son had suffered
any firearm shot. He was suggested that he has purchased the land
of the accused which is situated in the western side of his house
from Jugeshwar, however, this witness denied this suggestion.
12. Learned counsel submits that the another injured
witness of this case is Rakesh Kumar (PW-3). He has supported
the prosecution case in his examination-in-chief and has narrated
the reason behind the occurrence and the manner of occurrence.
He has stated that Dilip and Mundrika both had fired which hit
him and his father Mahendra Singh. In his cross-examination, he
has stated that in his statement made before police he had given
the name of Mundrika Singh as the person who had fired and had
also stated that in the said firing he had suffered injury at one place
and his father had suffered injury at seven places on his body. This
witness has stated that he reached the Bakhtiyarpur Primary Health
Center at about 9:00 AM and thereafter PMCH Patna at 12/01
hours. He was admitted in PMCH for 4/5 days.
13. It is further submitted that Doctor (PW-5) had
examined Rakesh Kumar, son of Mahendra Singh and had found
lacerated wound of size 1/4″ x 1/4″ x 1/6″ on the left clavicle near
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lateral III. The Doctor opined that the nature of injury was simple
and about the weapon by which the injury was caused, the opinion
was reserved. PW-5 had also examined Mahendra Singh and had
found as many as seven injuries on his body. Those injuries were
simple in nature caused within six hours. Again about the nature of
injury, PW-5 has opined that the injuries were simple in nature but
the opinion with regard to the mode of production of injury was
reserved until the report is made available from higher center. He
has proved the injury reports of Rakesh Kumar and Mahendra
Singh as Exhibit ‘2’ and ‘2/1’ respectively. PW-5 was suggested by
the defence that the injury report was collusive which he denied.
14. Learned counsel submits that the I.O. (PW-6) has
proved the written application (Exhibit ‘4’). He has stated that
Mahendra Singh had submitted a written application which is the
basis of the First Information Report. He has proved the
endorsement made on the written application in his handwriting
and has also proved his signature thereon as Exhibit ‘4’. The I.O.
has stated that he had recorded the statement of the informant and
the injured Rakesh Kumar whereafter he had sent the requisition
for their treatment to the hospital. He had reached the place of
occurrence and had recorded the statement of Mukesh Kumar and
had inspected the place of occurrence as informed by him. He has
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given the place of occurrence as the wall of the house of Mahendra
Singh in the western side and thereafter there is a vacant land of
the accused persons. He had seen the iron rod placed on the
western wall of the house of the informant which was outside for
purpose of construction of chhajja. I.O. has stated that to stop this
construction, the quarrel had taken place. In the western side of the
place of occurrence is the vacant land of Jugeshwar Singh and
Sone Lal Singh. I.O. had received the injury reports from
Bakhtiyarpur Hospital. In paragraph ‘2’ of his cross-examination,
he has stated that Mahendra Singh had made statement that
Mundrika Singh and Dilip Singh had come armed with double-
barrel gun and they had fired with an intention to kill him and his
son. He had not stated about the firing by Mundrika Singh
separately.
15. Learned counsel submits that another Doctor,
namely, Dr. Vinay Kumar (PW-8) who was posted in Indira
Gandhi Central Casualty, PMCH, Patna as SOD has deposed. He
had examined the X-ray of the patient Mahendra Singh and the
report given by Dr. Rajeev Kumar, Department of Radiology,
PMCH. He has stated in his note that the details of injury, age of
injury, cause of injury and nature of injury may be obtained from
the Medical Officer, PHC Bakhtiyarpur who examined the patient
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first vide Registration No. 3442 dated 09.06.2005 and referred the
patient to PMCH, Patna. PW-8 had also examined the X-ray of
Chest PA view of patient Rakesh Kumar and report given by Dr.
Rajeev Kumar, Department of Radiology. In his note, PW-8 has
once again stated the same thing with regard to the details of the
injury, the age of injury, cause of injury and nature of injury. He
has proved the injury report of Mahendra Singh and Rakesh
Kumar which were in his handwriting as Exhibit ‘7’ and Exhibit
‘8’ respectively. He has stated that in Exhibit ‘5’ the writing to the
extent “XPM 3836 Multiple Metallic foreign body” is in his
handwriting and in his signature. Similarly, in Exhibit ‘6’ the
writing “XPM 3840 Multiple Matellic foreign body in left infra
scapular” are in his handwriting and signature. He has proved his
writing and signature as Exhibit ‘6/1’ on Exhibit ‘6’. In his cross-
examination, PW-8 has stated that in the injury report there is no
mention of extraction of any bullet or pellet.
16. Learned counsel submits that the ocular evidence of
the injured witnesses in this case are consistent, the other
prosecution witnesses, namely, Jaibind Kumar (PW-1) is an
independent witness who has supported the prosecution case. The
another witness Mukesh Kumar (PW-2) is another son of
Mahendra Singh who has also supported the prosecution case and
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the defence has failed to impeach their credibility. It is his
submission that on the face of the evidences available on the
record, the one and only finding which is liable to be reached and
concluded is that the occurrence took place on 09.06.2005 at 8:00
AM when the informant was preparing to raise chhajja on the
western wall of his house. An altercation took place when an
objection was raised by Jugeshwar Singh and Sone Lal Singh who
are the land owner of the land situated in the western side of the
wall towards which the chhajja was being constructed. The
accused, namely, Dilip Singh and Sone Lal Singh went to their
house and came out with double-barrel gun. It was Dilip Singh,
son of Sone Lal Singh, who fired from the double-barrel gun and
caused injuries to the informant and his son. So far as other
accused-respondents are concerned, they actively participated in
the occurrence. They were part of unlawful assembly. The Doctor
(PW-5) who was posted at the PHC has though noticed the kind of
injuries suffered by both the injured but he purposely withheld his
opinion as regards the mode of production of the injury. Exhibit ‘2’
and ‘2/1’ are the injury reports, however, it is important to note
that PW-8 has proved the injury report Exhibit ‘7’ and ‘8’
respectively. He has also admitted his writing and signature on
Exhibit ‘5’ wherein he has recorded that multiple metallic foreign
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body has been found. It is submitted that in the face of such
consistent ocular and medical evidence, the learned trial court has
completely erred in acquitting the accused persons.
Submissions on behalf of the Respondents
17. The appeal has been contested by learned counsel
for the respondent nos. 2 to 6. Learned counsel submits that the
learned trial court has examined all the facts and circumstances as
appearing from the records. The dispute in this case arose on
account of construction of balcony. The stand of the defence is that
the prosecution side was constructing balcony outside the area on
their land and they were encroaching into the area of the defence
side.
18. It is submitted that the occurrence which took place
was all of a sudden in course of construction of the balcony and
the accused persons were not armed with any weapon at the time
of occurrence. The prosecution case is that after the initial quarrel
Mundrika and Dilip Singh both came outside their house armed
with double-barrel gun and on the order of Sone Lal and
Jugeshwar, they had fired on the informant and his son Rakesh
Kumar. The learned trial court has found that the Doctor had not
noted presence of any bullet or pellet in the injury report of
Mahendra Singh and Rakesh Kumar. The X-ray report given by
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Dr. Rajeev Kumar has not been brought in evidence, therefore, the
learned trial court has rightly concluded that no bullet was
extracted from the body of the injured persons. Mundrika Singh
and Jugeshwar Singh, against whom there were allegations of
hurling abuses, were not sent up for trial because at the time of
occurrence, they were posted in the Union Bank as members of the
Home Guard for security. Thus, neither Mundrika Singh nor
Jugeshwar Singh faced trial.
19. Learned counsel further submits that regarding the
injury on the body of the son of the informant, the Doctor has not
supported his case. The Doctor had not extracted any bullet from
the body of the injured, neither any seizure list of the bullet has
been prepared nor the same has been produced as material exhibit.
The gun which is weapon of crime has also not been seized. The
trial court has further found that from the evidence on the record, it
appears that the injuries were simple in nature and no final opinion
has been given on the nature of injury showing that the injuries
were grievous, therefore, the learned trial court has rightly
concluded that the prosecution had failed to establish a case under
Section 307 IPC beyond all reasonable doubts and the charge
under Section 27 of the Arms Act has also not been proved. It is
submitted that the learned trial court has rightly concluded that
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because the injury is of simple nature, the charge under Section
324 IPC is also not proved.
20. Mr. Sujit Kumar Singh, learned Additional Public
Prosecutor for the State has endorsed the submissions of learned
counsel for the private respondent nos. 2 to 6 and has defended the
impugned judgment and order.
Consideration
21. We have heard learned counsel for the appellant,
learned counsel for the respondent nos. 2 to 6 and learned
Additional Public Prosecutor for the State as also perused the trial
court records.
22. We find from the evidence on the record that the
prosecution case is based on the written application of Mahendra
Singh (PW-4). He has stated that the occurrence took place at 8:00
AM when he was raising a balcony on the western wall of his
house on his land. Initially, a quarrel took place when Jugeshwar
Singh and Sone Lal Singh raised objection. Thereafter, it is stated
that Sone Lal Singh and Dilip Singh both came outside their house
armed with a double-barrel gun, though regarding other accused
persons namely Shailendra Singh, Satish Singh, Rishi Singh and
Brij Ballabh Singh, it is stated that they were also armed with
various weapons but the prosecution witnesses have consistently
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stated in their deposition that it was Dilip Singh and Mundrika
Singh who had fired. The informant who has been examined as
PW-4 has stated about the presence of Shailendra, Rishi, Satish
and Brij Ballabh with spear and lathi but nothing has been sated
about their participation in the occurrence. The specific allegation
of firing has been made against Dilip Singh and Mundrika Singh
but as recorded above, Mundrika Singh has not been sent up for
trial. About Sone Lal Singh (since deceased), PW-4 has stated that
he and Jugeshwar had ordered to kill. Jugeshwar has not been sent
up for trial. In his examination-in-chief, PW-4 has stated that both
had fired at the same time. In his cross-examination, PW-4 has
stated that shots fired by both of them hit him and his son had
received the shot fired by Mundrika. He has stated that he was
treated in the PMCH and had remained admitted there for five
days. It has come in evidence that the vacant land of Sone Lal and
Jugeshwar is situated west to the boundary of the house of the
informant. From the pattern of cross-examination, it appears that
the defence suggested to this witness that no such occurrence as
stated by PW-4 has taken place and neither he nor his son had
suffered any shot. This suggestion has been denied by the
informant (PW-4).
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23. The another prosecution witness is Rakesh Kumar
(PW-3) who is the son of the informant and an injured of this case.
He has supported the prosecution case. According to him, Sone Lal
and Jugeshwar had ordered to kill on which Dilip and Mundrika
had fired, the shot hit Mahendra Singh and this witness. He has
stated that Mahendra Singh had suffered pellet at seven places on
his body. In his cross-examination, he has stated that in course of
investigation he had stated before police that he had suffered pellet
at one place on his body and his father had suffered the same at
seven places. He has stated that his clothes were soaked with blood
and his father was also bleeding and his clothes were soaked in
blood. Blood has also fallen on the earth. His father was lifted by
Mukesh Kumar and Ajay Singh, clothes were, however, not seized
by Police. In his cross-examination, he has stated that he had
reached Bakhtiyarpur Primary Health Centre at 9:00 AM, PMCH
at 12/01 hours and was admitted in PMCH for 4/5 days. He denied
the suggestion that neither he nor his father had suffered any
assault nor any blood had fallen on their clothes and he had lodged
the case with an intention to usurp the land. PW-3 denied the
suggestion.
24. This Court finds that PW-3 and PW-4 both are
injured witnesses of this case, they have supported the prosecution
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case, their statements are consistent and the defence is unable to
extract any material inconsistency or contradiction in the statement
of PW-3 and PW-4.
25. Jaibind Kumar (PW-1) is an independent witness. He
has also supported the prosecution case and he denied the
suggestion of the defence that in his statement before police he had
stated that he had not seen the occurrence and had reached there on
hulla and had heard about the occurrence. In his cross-
examination, he has stated that the injured were treated at
Bakhtiyarpur. He had seen that blood had fallen at the place of
occurrence and the clothes of both the injured were blood-soaked.
26. Mukesh Kumar (PW-2) is the eldest son of the
informant (PW-4) who has also supported the prosecution case. All
these witnesses are consistent in their depositions.
27. Ravindra Nath Chaturvedi (PW-6) is the Sub-
Inspector of Police who was posted in Bakhtiyarpur Police Station
on 09.06.2005. He had received the written application from the
informant and had lodged the FIR on that basis. He has proved the
endorsement made on the written application in his writing and
signature as Exhibit ‘4’. He had sent the injured for treatment to
hospital with his requisitions and had inspected the place of
occurrence. He had also received the injury report from
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Bakhtiyarpur Hospital. In his cross-examination, I.O. has stated
that Mahendra Singh (PW-4) had stated in his statement that
Mundrika Singh and Dilip Singh had come armed with double-
barrel gun and it was Dilip Singh who had fired from his double-
barrel gun with an intention to kill him and his son. The I.O. has
stated in the same paragraph of his deposition that Mahendra
Singh had not stated that Mundrika Singh had separately fired. We
find that Mundrika Singh has already been discharged at the stage
of submission of charge-sheet itself as he was not sent up for trial.
From the evidence of the I.O. (PW-6), it appears that initially in
course of investigation, informant (PW-4) had stated that it was
Dilip Singh who had fired upon him and his son by his double-
barrel gun.
28. This Court finds that the prosecution has proved the
certified copy of the injury report of the injured through Raju
Kumar (PW-7) who was a Clerk in the Surgery Record Room of
PMCH, Patna. He had also brought SOD Book and has proved that
on page no. 27, the recorded patient Mahendra Singh had come
after being referred by PHC Bakhtiyarpur and his ESR No. is
3069. On page no. 28, the second patient namely Rakesh Kumar is
mentioned who had also been referred by PHC Bakhtiyarpur. His
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ESR number is 3070. Prosecution has exhibited ESR No. 3069 and
ESR No. 3070 as Exhibit ‘5’ and ‘6’ respectively.
29. At this stage, this Court finds that Dr Vijay Kumar
Verma (PW-5) who was posted as Medical Officer in the Primary
Health Centre, Bakhtiyarpur had examined PW-3 and PW-4. His
deposition contains the kind of injuries present on the body of PW-
3 and PW-4 respectively. Therefore, this Court would reproduce
the deposition of PW-5 as under:-
“On dated 09.06.2005 I was posted at Primary Health
Center, Bakhtiyarpur as Medical Officer on that day I
examined Rakesh Kumar aged about 22 years S/o Shri
Mahendra Singh, Vill-Manjhauli, P.S. Bakhtiyarpur,
Patna at 11:55 AM and found following injury on his
person:-
1. Lacerated wound of size 1/4″ x 1/4″ x 1/6″ on the
left clavicle near lateral III
Time of injury within six hours.
Mark of identification- A mole on side of neck.
Nature of injury – simple caused by opinion reserved
patient was referred to PMCH, Patna for opinion.
2. On that very day at 11:00 AM I examined Sri
Mahendra Singh aged abou 48 years, S/o Late Pokhi
Singh at Vill-Manjhauli, P.S.-Bakhtiyarpur, District-
Patna and found following injuries on his person:-
1. Laceration of 1/4″ x 1/4″ x 1/6″ on the right side of
forehead.
2. Laceration of 1/4″ x 1/4″ x 1/6″ two in number on
the left upper arm.
3. Laceration of 1/4″ x 1/4″ x 1/6″ above right nipple
Patna High Court CR. APP (DB) No.509 of 2024 dt.24-01-2025
22/28
4. Laceration of 1/4″ x 1/4″ x 1/6″ on the right upper
abdomen.
5. Laceration of 1/4″ x 1/4″ x 1/6″ on the inter
Phalangeal joint of right middle finger.
6. Laceration on 1/4″ x 1/4″ x 1/6″ on the right knee.
7. Laceration on 1/4″ x 1/4″ x 1/6″ on the mid right
leg.
Time of injury – within six hours.
Mark of identification – mole on the right cheek above
angle of mouth.
Nature of injury – The above injuries are simple in
nature. Mode of production of injury opinion is
reserved until the report is available from higher
centre.
These both injuries report are in my pen and it bears
my signature marked it Ext. 2 and 2/1.
In the injury report of Rakesh Kumar it has not been
written that patient was referred to higher hospital.
It is not correct to say that injury report is collusive.”
30. From the evidence of the Doctor (PW-5) it is evident
that the informant (PW-4) had suffered injuries at as many as
seven places on his body. Those injuries were caused within six
hours and they were simple in nature but the conduct of PW-5 as a
Medical Officer seems highly doubtful in not recording his opinion
as to mode of production of injury. He simply recorded that “mode
of production of injury opinion is reserved until the report is
available from higher centre”.
Patna High Court CR. APP (DB) No.509 of 2024 dt.24-01-2025
23/28
31. The another Doctor namely Vinay Kumar (PW-8)
has been examined who has stated that the patient Rakesh Kumar
had come after having been referred by PHC Bakhtiyarpur on
09.06.2005 and he was discharged from PMCH on 13.06.2005. He
had examined the X-ray of the patient and report given by Dr.
Rajiv Kumar, Department of Radiology. The X-ray report shows
as follows:-
X-ray report of Rakesh Kumar
“X-ray chest no abnormality detected, except a
radio opaque pellet like metallic shadow in shoft
tissue area of left scapular region.
The patient was treated conservatively and was
discharged from PMCH o 13.06.2005.”
32. In his note, the Doctor has stated that the details of
injury, age of injury, cause of injury and nature of injury may
kindly be obtained from Medical Officer, PHC, Bakhtiyarpur who
examined the patient first vide Registration No. 3442 dated
09.06.2005.
33. PW-8 had also examined the X-ray of chest PA view
of patient Mahendra Singh who had been referred by PHC
Bakhtiyarpur on 09.06.2005. He was also discharged from PMCH
on 13.06.2005 and his X-ray of chest shows no abnormality
detected except a radio opaque pellet like metallic shadow in shoft
tissue area of left scapular region. PW-8 has proved his writing on
Patna High Court CR. APP (DB) No.509 of 2024 dt.24-01-2025
24/28Exhibit ‘5’ and Exhibit ‘6’ wherein it is recorded “XPM 3836
Multiple Metallic foreign body (Exhibit ‘5/1’) and “XPM 3840
Multiple Metallic foreign body in left infra scapular (Exhibit
‘6/1’)”
34. The learned trial court seems to have committed
gross error in appreciating the evidence of the Medical Officer,
PHC, Bakhtiyarpur and Dr. Vinay Kumar of PMCH who have
been examined as PW-5 and PW-8 respectively. The view taken by
the learned trial court that the Doctor has not supported the
prosecution case of firing shot upon the informant and his son
Rakesh Kumar seems to be perversed. The learned trial court
rejected the prosecution case only on the ground that no pellet has
been taken out from the body of the injured and no seizure list of
the pellet has been made. To this Court, it is evident that PW-5 had
noted seven injuries on the body of the informant (PW-4) and one
injury on the body of his son (PW-3). PW-8 who had proved the
writing on the injury report as Exhibit ‘5/1’ and Exhibit ‘6/1’
respectively clearly shows that multiple metallic foreign body
were noticed in the X-ray of PW-3 and PW-4. The defence could
not muster enough courage to cross-examine the Doctors as to the
nature of multiple metallic foreign body which were shown in the
X-ray of the two injured.
Patna High Court CR. APP (DB) No.509 of 2024 dt.24-01-2025
25/28
35. This Court is conscious of the judicial
pronouncement on the scope of interference with a judgment of
acquittal. From the entire materials by way of evidences on the
record the one and only conclusion which may be reached upon
reappreciation of the entire evidence by this Court is that on
account of the dispute which arose while raising balcony by the
informant (PW-4), Dilip Singh, son of Sone Lal Singh had come
armed with a double-barrel gun and had fired upon the informant,
however, only one firing was done and it was done from some
distance as a result whereof, the pellets spread and injured the
informant and his son on different parts of their bodies. The
injuries were simple in nature and the X-ray report shows pellet
like metallic shadow in the X-ray of skull, chest, right leg
including knee of the informant. X-ray report of the son of the
informant was showing a radio opaque pellet like metallic shadow
in soft tissue area of left scapular region. The fact that the patients
were treated conservatively in the hospital shows that there was no
injury on vital part of the body which in ordinary course were
likely to cause death.
36. In overall analysis of the evidences on the record,
this Court is of the opinion that so far as respondent no.2 Dilip
Singh is concerned, the prosecution has been able to prove his
Patna High Court CR. APP (DB) No.509 of 2024 dt.24-01-2025
26/28guilt under Section 324 IPC. Presence of respondent nos. 3 to 6
along with Dilip Singh (Respondent No.2) at the place of
occurrence have also been proved, they are also convicted under
Section 148 and 324/149 IPC.
37. To this court, it appears that the prosecution has been
able to prove its case beyond all reasonable doubts. Dilip Singh
(Respondent No. 2) was holding the double-barrel gun and had
fired upon the informant, however, only one firing was done from
some distance. The learned trial court has held the accused-
respondents guilty of the offences punishable under Sections 148
and 323/149 IPC. Learned counsel for the respondent nos. 2 to 6
has informed this Court that respondent nos. 2 to 6 have not
preferred any appeal against their conviction and sentence under
Sections 148 and 323/149 IPC. It is, therefore, crystal clear that the
trial court’s findings as regards the charge under Sections 148 and
149 IPC have not been assailed. Section 148 and 149 IPC reads as
under:-
“148. Rioting, armed with deadly weapon.
Whoever is guilty of rioting, being armed with a deadly
weapon or with anything which, used as a 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.
149. Every member of unlawful assembly guilty of
offence committed in prosecution of common object
If an offence is committed 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
Patna High Court CR. APP (DB) No.509 of 2024 dt.24-01-2025
27/28be likely to be committed in prosecution of that object,
every person who, at the time of the committing of that
offence, is a member of the same assembly, is guilty of that
offence.”
38. In case of Yunis @ Kariya vs. State of Madhya
Pradesh reported in AIR 2003 SC 539, the Supreme Court has
held that even if no overt act is imputed to a particular person,
when the charge is under Section 149 IPC, the presence of the
accused as part of an unlawful assembly is sufficient for
conviction. It is well settled that once a membership of an
unlawful assembly is established, it is not incumbent on the
prosecution to establish whether any specific overt act has been
assigned to any accused.
39. We have noticed that in this case, Dilip Singh was
armed with deadly weapon, which was a firearm and had fired
from the same causing injuries to the appellant and his son. The
learned trial court has acquitted respondent nos. 2 to 6 of the
charges under Sections 307/149, 147, 148, 324/149 but we are of
the view that in this case, the ingredients of Section 324 IPC are
available and respondent nos. 2 to 6 would be liable to be held
guilty for commission of offence under Section 324 IPC with the
aid of Section 149 IPC. Section 324 IPC reads as under.
“324. Voluntarily causing hurt by dangerous weapons
or means
Whoever, except in the case provided for by section 334
voluntarily causes hurt by means of any instrument for
shooting, stabbing or cutting, or any instrument which,
Patna High Court CR. APP (DB) No.509 of 2024 dt.24-01-2025
28/28used 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 of either description for a
term which may extend to three years, or with fine, or with
both.”
40. We, therefore, convict respondent no. 2, namely,
Dilip Singh, who fired from his double-barrel gun for the offence
under Section 324 IPC. So far as respondent nos. 3, 4, 5 and 6 are
concerned, they are convicted under Section 324/149 IPC. Since
they are present in Court, they are taken into custody.
(Rajeev Ranjan Prasad, J)
(Ashok Kumar Pandey, J)
Rishi/-
AFR/NAFR CAV DATE 17.01.2025 Uploading Date 24.01.2025 Transmission Date 24.01.2025
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