Patna High Court
Surendra Yadav vs The State Of Bihar on 21 February, 2025
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad, Shailendra Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.501 of 2024
In
CRIMINAL APPEAL (SJ) No.1206 of 2024
Arising Out of PS. Case No.-114 Year-2019 Thana- SIKANDRA District- Jamui
======================================================
Surendra Yadav, S/O Late Tunha Yadav, R/O Village and P.O- Bhullo, P.S-
Sikandra, Distt.- Jamui.
... ... Appellant
Versus
1. The State of Bihar
2. Bhim Yadav, S/O Tunha Yadav, R/O Village and P.O- Bhullo, P.S- Sikandra,
Distt.- Jamui.
3. Sharvan Yadav, S/O Tunha Yadav, R/O Village and P.O- Bhullo, P.S-
Sikandra, Distt.- Jamui.
4. Bablu Yadav, S/O Bhim Yadav, R/O Village and P.O- Bhullo, P.S- Sikandra,
Distt.- Jamui.
5. Chunni Devi, W/O Bablu Yadav, R/O Village and P.O- Bhullo, P.S-
Sikandra, Distt.- Jamui.
6. Rina Devi, W/O Sharvan Yadav, R/O Village and P.O- Bhullo, P.S- Sikandra,
Distt.- Jamui.
... ... Respondents
======================================================
Appearance :
For the Appellant : Mr. Sanjay Kumar Mishra, Advocate
Mr. Ashok Kumar, Advocate
For the State : Mr. B.B. Singh, APP
For the Resp Nos. 2 to 6 : Mr. Amar Prakash, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE SHAILENDRA SINGH
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 21-02-2025
Heard learned counsel for the appellant, learned
Additional Public Prosecutor for the State and learned counsel for
respondent nos. 2 to 6.
2. This appeal has been preferred by the
victim/informant, under proviso to Section 372 of the Code of
Patna High Court CR. APP (DB) No.501 of 2024 dt.21-02-2025
2/30
Criminal Procedure, 1973 (in short 'CrPC') (now Section 413 of
the Bhartiya Nagrik Suraksha Sanhita (in short 'BNSS')) for
setting aside the judgment and order dated 23.12.2023 and
02.01.2024
respectively passed by learned Additional District &
Sessions Judge-IV, Jamui (hereinafter referred to as the ‘learned
trial court’) in Sessions Trial No. 255 of 2021 arising out of
Sikandara P.S. Case No. 114 of 2019. By the impugned judgment
and order, the learned trial court has held that the prosecution
failed to prove their case as alleged for the offences punishable
under Sections 148, 307, 341, 354-B and 506/149 of the Indian
Penal Code (in short ‘IPC‘) even as the learned trial court, on the
other hand, held the respondents guilty of committing the offences
punishable under Sections 147, 323, 325/149 IPC but sentenced
them only with the period undergone and by imposing a fine
amount.
Prosecution Case
3. The prosecution case is based on a written application
under the signature of the informant Surendra Yadav (PW-2) in
which he has alleged as under:-
“On 05.05.2019 at 07:30 AM, the accused persons,
namely, (1) Bhim Yadav (2) Bablu Yadav, (3) Chunni Devi, (4)
Sharvan Yadav, (5) Sonu Kumar and (6) Rina Devi armed with
Patna High Court CR. APP (DB) No.501 of 2024 dt.21-02-2025
3/30farsa, iron rod, khanti and danda entered into the house of the
informant with an intention to kill, attacked the family members of
the informant. Bhim Yadav (respondent no. 2) assaulted Rajkumari
Devi, wife of the informant on her head repeatedly by farsa as a
result whereof his wife started bleeding profusely from her head
and after being injured, she fell down. Bablu Yadav (respondent
no. 4) slammed him down on the earth and assaulted him
repeatedly as a result whereof he suffered torn injuries at three
places on his head and his entire body was not working because of
the assault given to him by lathi. Chunni Devi and Rina Devi both
assaulted his wife, who was lying unconscious, by lathi. On
hearing hulla, his neighbours started assembling but Sharvan
Yadav having a revolver in his hand threatened all of them saying
that if anybody would come to rescue them then they would be
killed. Sonu was standing on the ‘rasta’ having a lathi in his hand
and he was also taking side of Sharvan Yadav. When the daughter
of the informant Chandni, who was already ill, came to save them
then they assaulted his daughter, pressed her neck with an
intention to kill whereafter his daughter fell down and became
unconscious then all the accused persons started assaulting her by
danda and when they thought that she has died then they left. After
Patna High Court CR. APP (DB) No.501 of 2024 dt.21-02-2025
4/30some time, son of the informant came home after taking his tuition
then he took all of them to police station. ”
4. On the basis of the written application, Sikandara P.S.
Case No. 114 of 2019 dated 05.05.2019 was registered under
Sections 341, 323, 448, 307, 354(B), 147, 148, 149 and 506 IPC.
The occurrence took place at 07:30 AM and the formal FIR has
been registered on the same day at 12:05 PM.
5. After investigation, police submitted a chargesheet
bearing no. 149 of 2021 dated 29.06.2021 in which the
Investigating Officer (I.O.) found that there are sufficient materials
to proceed against the six named accused persons. After
submission of chargesheet, the learned Magistrate took cognizance
of the offences vide order dated 13.07.2021 and on finding that the
case is triable by a court of sessions, committed the records to the
court of sessions vide order dated 21.09.2021.
6. In the court of Sessions, the accused persons were
explained the charges which they denied and claimed to be tried.
They were charged for committing offences punishable under
Sections 147, 148, 307, 341, 149, 323, 354-B, 325 and 506/149
IPC. On perusal of the charges available on the record, it is found
that respondent nos. 2 to 6 were charged apart from other Sections,
one under Section 307/149 IPC.
Patna High Court CR. APP (DB) No.501 of 2024 dt.21-02-2025
5/30
7. In course of trial, the prosecution examined as many
as eight witnesses and exhibited five documents. The defence
examined three witnesses and exhibited three documents. The list
of witnesses and the documentary evidences adduced on behalf of
the parties are being provided hereunder in a tabular form:-
List of Prosecution Witnesses
PW-1 Rajkumari Devi
PW-2 Surendra Yadav
PW-3 Dr. Ravindra Kumar
PW-4 Dhruv Kumar
PW-5 Rajesh Kumar
PW-6 Chandani Kumari
PW-7 Gautam Buddha
PW-8 Yugjit KumarList of Exhibits on behalf of Prosecution
Ext. P-1/PW-2 Signature of informant on written
application
Ext. P-2/PW-3 Writing and Signature of doctor
on injury report of Rajkumari
Devi
Ext. P-3/PW-3 Writing and Signature of doctor on
Injury report of Surendra Yadav
Ext. P-4/PW-5 Writing and Signature of the I.O.
Rajesh Kumar on Charge-sheet
Ext. P-5/PW-7 Signature of S.H.O. Rajya Vardhan
Kumar on Formal FIR
List of Defence Witnesses
DW-1 Kishori Yadav
DW-2 Deepak Kumar
Patna High Court CR. APP (DB) No.501 of 2024 dt.21-02-2025
6/30DW-3 Rameswar Yadav
List of Exhibits on behalf of Defence
Ext. D-1/court C.C. of ordersheet dated
06.05.2019 to 13.04.2022 in
Sikandara P.S. Case no. 115/19
Ext. D-2/court C.C. of FIR in Sikandara P.S.
Case No. 115/19 from Bholu
Yadav against Surendra Yadav
and Others
Ext. D-3/court C.C. of Chargesheet in Sikandara
P.S. Case No. 115/19Analysis of the Evidences
8. In this case, Rajkumari Devi (PW-1) and Surendra
Yadav (PW-2) are the two injured witnesses. As per the written
application of PW-2, the accused persons entered into the house of
the informant at 07:30 AM. They were armed with farsa, iron rod,
khanti and danda. They attacked on the family of the informant.
Bhim Yadav is said to have assaulted Rajkumari Devi, wife of the
informant on her head repeatedly by farsa as a result whereof his
wife started bleeding profusely from her head and after being
injured, she fell down. The informant (PW-2) has further stated
that Bablu Yadav slammed him down on the earth and assaulted
him repeatedly as a result whereof the informant (PW-2) suffered
torn injuries at three places on his head and his entire body was not
Patna High Court CR. APP (DB) No.501 of 2024 dt.21-02-2025
7/30
working because of the assault given to him by lathi. He has
further stated that Chunni Devi and Rina Devi both assaulted his
wife by lathi. On hearing hulla, his neighbours started assembling
but Sharvan Yadav having a revolver in his hand threatened all of
them saying that if anybody would come to rescue them then they
would be killed. Sonu was standing on the rasta having a lathi in
his hand and he was also taking side of Sharvan Yadav. He further
stated that when his daughter Chandni who was already ill came to
save them then they assaulted his daughter, pressed her neck with
an intention to kill whereafter his daughter fell down and became
unconscious then all the accused persons started assaulting her by
danda and when they thought that she has died then they left. After
some time, his son came home after taking his tuition then he took
all of them to police station.
9. In course of evidence, Rajkumari Devi (PW-1) has
deposed that Bhim Yadav had assaulted her by farsa on her head 3-
4 times whereafter she had fallen down and became unconscious.
She has further stated that when her husband Surendra Yadav came
to save her then Bablu Yadav assaulted him by lathi. In her
examination-in-chief, this witness has supported her case. She has
stated that her treatment was done at Jamui and Sikandara. In her
cross-examination, she has stated that the informant and the
Patna High Court CR. APP (DB) No.501 of 2024 dt.21-02-2025
8/30
accused are brothers and they reside in separate houses. She has
given description of her residential house. She has stated that all
the accused persons came to her house and started assaulting. She
along with her husband and daughter had raised hulla whereafter
the villagers came. She has stated that she had become
unconscious, her husband and daughter were assaulted and blood
had spread in a distance of two feet. Blood had fallen in the
courtyard of the house. She has stated that blood had fallen on the
clothes and her husband had suffered injuries on his head at three
places and had also suffered assault on his body. She has stated
that she had not gone to her house and was living in Jamui since
the day of occurrence. She denied the suggestion that Bhim Yadav
had lodged a case against her husband and only in order to save
herself in the said case, she was falsely deposing.
10. Surendra Yadav (PW-2) is another injured who has
also supported his prosecution case. He has stated that when he
went to save his wife then Bablu Yadav slammed him down and
assaulted him mercilessly by lathi and danda. He could not find
that how many lathi he was assaulted by. This witness has been
cross-examined. He has stated that he had lodged one case against
the accused about 21 years ago because Bhim Yadav was keeping
evil eyes on his wife. In the said case, the accused persons had
Patna High Court CR. APP (DB) No.501 of 2024 dt.21-02-2025
9/30
been acquitted. He has stated that he was living separately with his
brothers for last twenty years and they have no unity in business.
This witness has stated that when the accused persons came into
his house, he was sitting in the hall and the door was open. He has
stated that first of all his wife was assaulted and when he went to
save her then he was slammed down on the earth. This witness has
stated that he had suffered several injuries on his body, on his both
legs, both hands and on the back as a result whereof, he could not
move for a month. This witness has stated that Daroga Ji had
recorded his statement in the police station. He has stated that with
regard to this occurrence, Bablu had lodged a case against him in
which he had not appeared.
11. Dr. Ravindra Kumar (PW-3) had been working in the
Primary Health Center, Sikandra. He had examined Rajkumari
Devi (PW-1) and Surendra Yadav (PW-2) and found the following
injuries on their body:-
“Rajkumari Devi (PW-1)
“(i) An injury over left side head measuring 2.5”
×1/2″×1/2″ in diamension.
(ii) An injury over right hand index finger, pain and
tenderness/ swelling.
(iii) Generalised bodyache.
Mark of identification – A mole mark over right hand
and a wound scar over face (near left angle of mouth).
X-ray report (Sadar Hospital, Jamui):- Plate
No.4519/10992, 10992, 10992, 10992 (10992 plate no.
Right hand index finger).
Patna High Court CR. APP (DB) No.501 of 2024 dt.21-02-2025
10/30
X-ray skull (AP & lat.), lower back-AP shows no bony
lesion but X-ray right hand shows fracture of shaft of
index finger.
Type of injury-injuries are caused by hard blunt
substance
Opinion – All above injuries are caused by hard blunt
substance and the nature of injury is grievous.
Surendra Yadav (PW-2)
(i) An injury over head left side above left ear measuring
1″ ×1/2″ ×1/2″ in dimension.
(ii) Several injuries noted over head right side as:-
(i) 1″ ×1/4″ ×1/4″ in measurement
(ii) ½” ×1/4″ ×1/4″ in measurement
(iii) 1 ½” ×1/2″ ×1/2″ in measurement
(iii) Bodyache
Mark of Identification- A cut scar over back side of left
thigh.
Type of injury – injury is caused by hard blunt
substance.
Opinion – All above injuries are caused by hard blunt
substance and nature of injury is simple.
X-ray report (Sadar Hospital, Jamui):-
shows X-ray skull (AP/lateral), X-ray left knee
(AP/lateral) and X-ray (lower back (AP) shows no any
bony lesions.”
12. He has proved their injury reports as Exhibit ‘P-2’
and Exhibit ‘P-3’ respectively. In his cross-examination, he has
stated that all injuries mentioned in the injury report of both
injured persons are possible due to fall on the ground. He has
stated that both injured persons had been discharged on the same
day after half an hour.
13. Dhruv Kumar (PW-4) is the Sub-Inspector of Police
who has stated that he had taken up the responsibility of
investigation on 29.08.2019. He was transferred on 25.12.2020
whereafter he had handed over the investigation to the Officer-in-
Patna High Court CR. APP (DB) No.501 of 2024 dt.21-02-2025
11/30
Charge-cum-Sub Inspector Sadashiv Sah of Sikandra Police
Station (not examined).
14. Rajesh Kumar (PW-5) is another Sub-Inspector of
Police posted at Sikandra Police Station on 15.04.2020. He had
taken over the investigation of this case by order of the Officer-in-
Charge of the Police Station. He had recorded the progress report
obtained from the Sub-Divisional Officer, Jamui in the case diary.
He had submitted the chargesheet against Bhim Yadav, Sharvan
Yadav, Bablu Yadav, Chunni Devi, Sonu Kumar and Rina Devi.
He has proved the chargesheet which has been marked Exhibit
‘P3/PW-5’. In his cross-examination, he has stated that he had no
personal knowledge of this case.
15. Chandni Kumari (PW-6) is the daughter of the
informant who has stated that the occurrence took place at about
07:00 AM when she was in her house. She has stated that in her
house, her mother, father and younger brother Sanoj and Yugjit
were there but Yugjit had gone to take tuition. She has stated that
Prabhu Yadav had assaulted her mother by farsa, Bablu Yadav had
assaulted her father by lathi and Sonu had assaulted her father by
lathi. Bhim had assaulted by farsa and Sharvan was standing with
a revolver. She has stated that Chunni Devi and Rina Devi had
assaulted her mother and when she went to save her, then Bablu
Patna High Court CR. APP (DB) No.501 of 2024 dt.21-02-2025
12/30
Yadav caught hold of her by her neck and slammed her down and
stood on her chest whereafter she became unconscious. In
paragraph ‘4’ of her deposition, she has stated that the occurrence
took place in the courtyard of her house. Her statement was
recorded by police one day after the occurrence. She has further
stated in her cross-examination that Bablu was armed with lathi
and she had made this statement before police.
16. Gautam Buddha (PW-7) is the I.O. of the case who
had taken up the responsibility of investigation of this case by
order of the Officer-in-Charge Rajvardhan Kumar. He has proved
Exhibit ‘P5’. In course of investigation, he had inspected the place
of occurrence and recorded statement of the witnesses. He has
stated that the place of occurrence is the kachchi road going to the
house of the informant from the southern PCC road. This has been
objected to by the prosecution. He had arrested accused Bhim
Yadav and Bablu Yadav and had obtained the injury report of
Rajkumari Devi and Surendra Yadav and had entered the same in
the case diary. In his cross-examination, he has stated that with
regard to the occurrence of the same day, Bablu Yadav had lodged
a Sikandra P.S. Case No. 115 of 2019. He was not aware when the
said FIR was sent to the court. He has stated that he had gone to
the place of occurrence and inspected the same and according to
Patna High Court CR. APP (DB) No.501 of 2024 dt.21-02-2025
13/30
him, the place of occurrence is a private road outside the house. He
has stated that he did not find any blood at the place of occurrence
and the informant had not given blood stained cloth to him. He had
also not demanded the clothes. He had recorded statement of
Rajkumari Devi. She has not stated in her statement as to whether
she had come in conscious condition or in unconscious condition
in the police station. He has stated that the requisition for the
injury report of Rajkumari Devi was issued by the Officer-in-
Charge. This witness has further stated that there was prior enmity
between the parties but he has not recorded on this point that what
kind of enmity was there. Rajkumari Devi had not stated that Bhim
Yadav had assaulted 3-4 times by farsa on her head and she had
become unconscious. She had not made a statement that Surendra
Yadav came to save her then Bablu Yadav had assaulted him by
lathi.
17. We find from the statement of the I.O. in paragraph
‘7’ that the defence has tried to take a contradiction from him with
regard to the statements of PW-1 but it is evident from the
deposition of Rajkumari Devi (PW-1) that when she was being
examined, the defence did not invite her attention towards her
previous statement made before police, therefore, what has been
stated by the I.O. (PW-7) in paragraph ‘7’ of his deposition cannot
Patna High Court CR. APP (DB) No.501 of 2024 dt.21-02-2025
14/30
be taken as a contradiction obtained with respect to the deposition
of PW-1.
18. Yugjit Kumar (PW-8) is the son of the informant
who was not present at the time of the occurrence in the house. It
appears that he is not an eye witness to the occurrence and from
his cross-examination, it further appears that his statement was not
recorded before the police.
19. The defence has also examined three witnesses.
Kishori Yadav (DW-1) has supported the prosecution case. This
witness has given a statement that Surendra Yadav, Jagjit Yadav,
Rajkumari Devi and Chandni Devi, all had done marpit and Bablu
Yadav was beaten. He has further stated that they assaulted
Surendra Yadav by the backside of the tangi on his head. We find
from the deposition of DW-1 that his statements are not coherent
and even as he says that Bablu was assaulted and he was treated by
Doctor, the arrest memo of Bablu shows that there was no injury
on his body. The defence has not brought on record any injury
report of Bablu.
20. Deepak Kumar @ Rakesh Yadav (DW-2) has come
as a defence witness and he has stated that Bablu Yadav, Chunni
Devi and Bhim Yadav had received injuries. He has stated that
both sides had land dispute. In his cross-examination, this witness
Patna High Court CR. APP (DB) No.501 of 2024 dt.21-02-2025
15/30
has stated that accused persons were present at the place of
occurrence but they had not received any assault. This witness has
stated that he had not received any summon from the court and had
been brought to depose in court by Bablu Yadav and he was saying
whatever he was told by Bablu Yadav.
21. Rajesh Yadav (DW-3) is another defence witness
who has stated that Bablu Yadav had received injury on his head
and when his wife Chunni Devi went to save him then she was
assaulted by Rajkumari Devi and Chandni Devi. Surendra Yadav
had lodged a false case against Bhim Yadav, Bablu Yadav and
others. He had not received any notice from the court and had
come to depose at the instance of Bhim Yadav and Sharvan Yadav.
This Court finds that even though this witness says about the
injury of the defence side, no injury report at all has been proved
by the defence.
22. The accused persons were examined under Section
313 Cr.PC and in their statement while denying the materials
brought by the prosecution, they pleaded innocence.
Findings of the Learned Trial Court
23. The learned trial court has held that the place of
occurrence is the house of the informant. It has been also held that
the prosecution had been able to prove its case under Sections
Patna High Court CR. APP (DB) No.501 of 2024 dt.21-02-2025
16/30
325/149, 323/149 and 147 IPC and hence, the accused are liable to
be convicted under Sections 147, 323, 325/149 IPC but at the same
time, learned trial court held that the prosecution failed to prove
their case as alleged for the offence punishable under Sections 148,
307, 341, 354B and 506/149 IPC.
24. The learned trial court has, however, taken a view
that the offences punishable under Sections 354-B/149, 307/149,
341/149 and 506/149 IPC have not been proved beyond all shadow
of reasonable doubts. It has also been held that the accused persons
came with common object armed with weapons, force and
violence were used by unlawful assembly, therefore, any member
of it, acting in prosecution of the common object would be liable
for the offence punishable under Section 147 IPC but as per
Section 148 IPC when act of rioting took place with deadly
weapon only such act would attract the offence punishable under
Section 148 IPC. In the opinion of the learned trial court, the
accused persons came armed with farsa, khanti, iron rod and
danda but injuries as caused would be showing no use of sharp-
cutting weapon like farsa or khanti and the nature of injuries
showing also no use of iron rods and moreover, it appears use of
lathi, danda which may not be taken as a deadly weapon as
Patna High Court CR. APP (DB) No.501 of 2024 dt.21-02-2025
17/30
mentioned in Section 148 IPC, hence, in this case, Section 148 IPC
would not be attracted.
Submissions on behalf of the Appellant
25. Learned counsel for the appellant has assailed the
impugned judgment on various grounds. It is submitted that in this
case prior enmity between the parties is fully established. The
place of occurrence is the house of the informant. The learned trial
court has held that the occurrence has taken place inside the house
of the informant. The date, time and place of occurrence are, thus,
fully established.
26. The grievance of the informant-appellant is that the
learned trial court has acquitted the respondent nos. 2 to 6 of the
charges under Sections 148, 307, 341, 354-B and 506/149 IPC. In
his submissions, in this case, the evidences available on the record
would fully establish the prosecution case and so far as Section
307 IPC is concerned, it stands attracted on the face of the
consistent and reliable evidence of the two injured witnesses,
namely, PW-1 and PW-2. The fact that the injuries found on the
body of PW-2 are simple in nature would not be a ground to say
that the offence under Section 307 IPC would not be attracted.
Further, Section 341 IPC would also be attracted for the reason
that the accused persons entered into the house of the informant
Patna High Court CR. APP (DB) No.501 of 2024 dt.21-02-2025
18/30
and assaulted him and his family members inside the house by
wrongfully restraining them. The wrongful restraint in the opinion
of learned counsel may take place inside the house also.
27. It is further submitted that the evidence of Rajkumari
Devi (PW-1) would also prove that a case under Section 354-B
IPC is made out. In her deposition, PW-1 has stated that she was
assaulted 3-4 times on her head by Bhim Yadav using farsa and
she had fallen down on the earth whereafter she had become
unconscious.
Submissions on behalf of Respondent nos. 2 to 6
28. On the other hand, learned counsel for respondent
nos. 2 to 6 would submit that the impugned judgment does not
suffer from any infirmity. The learned trial court has rightly
appreciated the entire evidence on the record. It has been held that
no injury by sharp-cutting weapon was found on the body of
Rajkumari Devi (PW-1). Her ocular evidence that she was inflicted
3-4 times farsa blow on her head has not been corroborated by the
injury report (Exhibit ‘P-2’). It is further submitted that there is no
statement in her deposition that the accused persons had used
criminal force with intent to disrobe her. She has not stated that
any of these respondents had acted with an intention of disrobing
Patna High Court CR. APP (DB) No.501 of 2024 dt.21-02-2025
19/30
or compelling her to be naked, therefore, the ingredients of Section
354-B IPC would not be attracted.
29. It is further submitted that the charge under Section
307/149 IPC and other Sections of the IPC were framed but on
perusal of the Charge Memo dated 08.10.2021, it would appear
that the accused persons were not charged for assaulting Surendra
Yadav (PW-2) who is the informant of this case. There was no
charge for committing attempt to murder of Surendra Yadav (PW-
2) and a bare perusal of the charge memo would show that the trial
court had framed a charge under Section 307/149 IPC against the
accused persons saying that they had in prosecution of the
common object of the unlawful assembly in prosecution of the
common object upon Rajkumari Devi intentionally caused
grievous injury on the person of the accused-victim, in such
circumstance that if by that act he would have caused death of the
said victim, he would have been guilty of that murder. There is no
whisper in the charge that the accused persons had intentionally
caused hurt to Surendra Yadav (PW-2) in a manner as envisaged
under Section 307 IPC.
30. Learned counsel submits that so far as the intentional
assault said to have been caused upon Rajkumari Devi (PW-1),
learned trial court found that Rajkumari Devi (PW-1) had suffered
Patna High Court CR. APP (DB) No.501 of 2024 dt.21-02-2025
20/30
three injuries: (i) in the left side of the head measuring
2.5cm×1/2cm×1/2cm in dia, (ii) right hand index finger pain and
tenderness and (iii) body pain. Injuries were caused by hard and
blunt substance. The injuries were grievous in nature, however, on
finding that these injuries were caused by hard and blunt
substance, the learned trial court held that it would attract the
offence punishable under Section 325/149 IPC and convicted all
the accused for the same offence. The learned trial court found that
the injuries were not sharp cut injuries and allegation about assault
with farsa on Rajkumari Devi (PW-1) was not being proved. In
such circumstance, the learned trial court has rightly acquitted the
accused persons of the charge under Section 307/149 IPC.
31. It is further submitted that the learned trial court has
not committed any error in taking a view that the charge under
Sections 148, 341/149 and 506/149 could not be proved by the
prosecution.
Submission on behalf of the State
32. Learned Additional Public Prosecutor for the State
has endorsed the submissions of learned counsel for respondent
nos. 2 to 6 but at the same time, it is submitted that the charge
framed by the learned trial court seems defective inasmuch as in
the Charge Memo dated 08.10.2021, there is no mention of the
Patna High Court CR. APP (DB) No.501 of 2024 dt.21-02-2025
21/30
assault caused on Surendra Yadav (PW-2) and the injuries suffered
by him. The materials on the record in form of chargesheet and the
case diary were available before the learned trial court and it
appears that while the trial court has mentioned the name of
Rajkumari Devi (PW-1) as one who had been allegedly
intentionally caused grievous injuries, the name of Surendra Yadav
(PW-2) has not been mentioned in the charge memo. This is a
defect in the charge memo and for that reason, it appears that the
case of Surendra Yadav as disclosed in the FIR and found true in
course of investigation could not be considered in accordance with
law. It is pointed out that Section 464 CrPC provides that if the
Court of Appeal is of the opinion that a failure of justice has
occasioned due to error/omission or irregularity in the charge, the
Appellate Court may order that a charge be framed and the trial be
recommended from the point immediately after framing of charge
and in the case of an error, omission or irregularity in the charge,
direct a new trial to be held upon charge framed in whatever
manner it thinks fit.
33. Learned Additional Public Prosecutor would, further,
submit that this Court being a Court of Appeal may take an
appropriate view of the matter keeping in view the aforementioned
provision together with the provision as contained under Section
Patna High Court CR. APP (DB) No.501 of 2024 dt.21-02-2025
22/30
386 CrPC (now Section 427 of BNSS) wherein an Appellate Court
hearing an appeal from an order of acquittal reverse such order and
direct that further inquiry be made, or that the accused be re-tried
or committed for trial, as the case may be or find him guilty and
pass sentence on him according to law.
Consideration
34. We have heard learned counsel for the appellant,
learned Additional Public Prosecutor for the State and learned
counsel for respondent nos. 2 to 6 as also perused the trial court’s
records.
35. In this case, it is apparent on the face of the record
that learned trial court has convicted respondent nos. 2 to 6 for the
offence under Sections 147, 323, 325/149 IPC and they have been
sentenced with the period undergone and fine of Rs.1000/-
Rs.5000/- and Rs.1000/- each respectively. The respondent nos. 2
to 6 have not appealed against the said conviction and sentence.
They have accepted the judgment to that extent.
36. Under proviso to Section 372 CrPC, a victim has a
right to prefer an appeal against any order passed by the court
acquitting the accused or convicting for a lesser offence or
imposing inadequate compensation. In the present case, the
informant-appellant is aggrieved by and dissatisfied with the
Patna High Court CR. APP (DB) No.501 of 2024 dt.21-02-2025
23/30
judgment of the learned trial court because the court has acquitted
the accused of the charges under Sections 148, 307, 341, 354-B
and 506/149 IPC and have convicted them for a lesser offence. It is
evident from the discussions made in the impugned judgment that
the place of occurrence in this case is the house of the informant.
The accused persons entered into the house of the informant on the
given date and time and assaulted PW-2 and his wife (PW-1). It is
true that PW-1 claimed that she was assaulted by Bhim Yadav on
her head by farsa 3-4 times but her ocular evidence has not been
corroborated by the injury report (Exhibit ‘P-2’). She has claimed
that she was also assaulted by other accused by lathi. The injuries
found on the body of PW-1 were caused by hard and blunt
substance, and that has been proved, therefore, the learned trial
court has convicted the accused persons of the offence under
Section 325/149 IPC. This has not been appealed against,
therefore, we need not enter into any discussion on the merit of the
said finding of the learned trial court which resulted in conviction
of the accused under Section 325/149 IPC. So far as charge under
Section 354-B/149 IPC is concerned, we have found force in the
submission of learned counsel for respondent nos. 2 to 6 that the
evidence of PW-1 would not show that she was assaulted with an
intention of disrobing or compelling her to be naked. So, in our
Patna High Court CR. APP (DB) No.501 of 2024 dt.21-02-2025
24/30
considered opinion, the learned trial court has not committed any
error in acquitting respondent nos. 2 to 6 under Section 354-B IPC.
37. So far as the charge under Section 323/149 IPC is
concerned, it appears that the learned trial court has held that all
accused persons named in this case and who faced the trial in this
case for forming unlawful assembly and assaulted Surendra Yadav,
his wife and his daughter Chandni Kumari and by that they
voluntarily caused hurt to them and hence, prosecution has proved
their case as alleged for the offence punishable under Section 323
IPC. We have found from the charge memo that the charge under
Section 323/149 IPC was framed in the following words:-
“That you, on or about the same day of same time at same
place voluntarily caused hurt to Rajkumari Devi in
prosecution of the common object and thereby committed
an offence punishable under Section of the 323/149. …”.
38. It is evident from the charge memo that it talks of
only the hurt caused to Rajkumari Devi and not to Surendra Yadav
and Chandni Kumari. It is evident that there is a clear omission
and error in framing of charge by the learned trial court.
39. We further find from the judgment of the learned
trial court that while considering as to whether charge under
Section 307/149 IPC is made out or not, the learned trial court has
discussed the injuries found on the body of PW-1 and PW-2 both.
Patna High Court CR. APP (DB) No.501 of 2024 dt.21-02-2025
25/30
Learned trial court seems to have proceeded to consider these
evidences on the record to prove this charge taking as if the
accused persons are facing charge for intentionally assaulting PW-
1 and PW-2 both but the fact remains that the charge memo by
which charge under Section 307/149 IPC has been framed, does
not mention the name of Surendra Yadav (PW-2) who claims to
have been brutally assaulted repeatedly by Bablu Yadav
(Respondent no. 4) and had suffered several injuries on his head.
We quote the charge framed under Section 307/149 IPC as under:-
“…. That you, on or about the same day of same time at
same place you along with accused persons in prosecution
of the common object of the unlawful assembly in
prosecution of common object upon Rajkumari Devi
intentionally caused grievous injuries on the person of the
accused-victim under such circumstances that if by that
act you have caused the death of the said victim you
would have been guilty of murder ….. and thereby
committed an offence punishable under 307/149 of the
Section Indian Penal Code.”
40. It is evident that no charge was explained to the
accused persons for committing intentional hurt and causing
injuries on the person of the informant (PW-2), in such
circumstance, this Court is of the considered opinion that the plea
of the informant-appellant before this Court that the learned trial
court has committed grave error in acquitting the accused persons
Patna High Court CR. APP (DB) No.501 of 2024 dt.21-02-2025
26/30
of the charge under Section 307/149 IPC and it has resulted in
travesty of justice seems to be justified. Since no charge has been
framed by the learned trial court in respect of the assault and hurt
caused upon Surendra Yadav (PW-2) and respondent nos. 2 to 6
had no opportunity to defend themselves against any such charge,
it would not be possible for the Appellate Court to take a view as
to the guilt of respondent nos. 2 to 6 of the charge under Section
307 IPC or 307/149 IPC, as the case may be.
41. Section 464 CrPC reads as under:-
“464. Effect of omission to frame, or absence of,
or error in, charge. – (1) No finding sentence or
order by a Court of competent jurisdiction shall be
deemed invalid merely on the ground that no
charge was framed or on the ground of any error,
omission or irregularity in the charge including
any misjoinder of charges, unless, in the opinion of
the Court of appeal, confirmation or revision, a
failure of justice has in fact been occasioned
thereby.
(2) If the Court of appeal, confirmation or revision
is of opinion that a failure of justice has in fact
been occasioned, it may, –
(a) in the case of an omission to frame a
charge, order that a charge be framed and that
the trial be recommenced from the point
immediately after the framing of the charge;
(b) in the case of an error, omission or
irregularity in the charge, direct a new trial to
Patna High Court CR. APP (DB) No.501 of 2024 dt.21-02-2025
27/30be had upon a charge framed in whatever
manner it thinks fit;
Provided that if the Court is of opinion that the
facts of the case are such that no valid charge
could be preferred against the accused in respect of
the facts proved, it shall quash the conviction.”
42. We also reproduce Section 386 CrPC hereunder:-
“386. Powers of the Appellate Court. – After
perusing such record and hearing the appellant or his
pleader, if he appears, and the Public Prosecutor, if he
appears, and in case of an appeal under section 377 or
section 378, the accused, if he appears, the Appellate
Court may, if it considers that there is no sufficient
ground for interfering, dismiss the appeal, or may –
(a) in an appeal from an order of acquittal, reverse
such order and direct that further inquiry be made, or
that the accused be re-tried or committed for trial, as
the case may be, or find him guilty and pass sentence
on him according to law;
(b) in an appeal from a conviction –
(i) reverse the finding and sentence and acquit or
discharge the accused, or order him to be re-tried
by a Court of competent jurisdiction subordinate to
such Appellate Court or committed for trial, or
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the
nature or the extent, or the nature and extent, of the
sentence, but not so as to enhance the same;
(c) in an appeal for enhancement of sentence
Patna High Court CR. APP (DB) No.501 of 2024 dt.21-02-2025
28/30
(i) reverse the finding and sentence and acquit or
discharge the accused or order him to be re-tried by
a Court competent to try the offence, or
(ii) alter the finding maintaining the sentence, or
(iii) with or without altering the finding, alter the
nature or the extent, or the nature and extent, of the
sentence, so as to enhance or reduce the same;
(d) in an appeal from any other order, alter or reverse
such order;
(e) make any amendment or any consequential or
incidental order that may be just or proper;
Provided that the sentence shall not be enhanced
unless the accused has had an opportunity of showing
cause against such enhancement;
Provided further that the Appellate Court shall not
inflict greater punishment for the offence which in its
opinion the accused has committed, than might have
been inflicted for that offence by the Court passing
the order or sentence under appeal.”
43. It is evident on a bare reading of Section 464 CrPC
that no finding, sentence or order by a court of competent
jurisdiction shall be deemed invalid merely on the ground that no
charge was framed or on the ground of any error, omission or
irregularity in the charge including any misjoinder of charges but
where in the opinion of the court of appeal a failure of justice has
in fact been occasioned thereby, the court of appeal may in the
case of an omission to frame a charge, order that a charge be
framed and that the trial be recommended from the point
Patna High Court CR. APP (DB) No.501 of 2024 dt.21-02-2025
29/30
immediately after the framing of the charge. Clause (b) of Sub-
Section (2) of Section 464 CrPC clearly provides that in the case
of error, omission or irregularity in the charge, the appellate court
may direct a new trial to be had upon a charge framed in whatever
manner it thinks fit.
44. In the present case, while we do not intend to make
any comment on the judgment of the learned trial court in respect
of the charges proved by the prosecution, we are of the considered
opinion that an omission to frame a charge under Section 307 IPC
for the intentional assault and hurt caused to Surendra Yadav (PW-
2) has resulted in failure of justice. We, therefore, in exercise of
our appellate power, direct the learned trial court to frame a charge
under all such Sections in which respondent nos. 2 to 6 have been
acquitted and after framing of charges for the intentional assault
and hurt caused to Surendra Yadav (PW-2), learned trial court shall
proceed from the stage on the point immediately after the framing
of the charge.
45. To that extent the impugned judgment acquitting the
accused persons of the charges under Sections 148, 307, 341,
506/149 IPC is set aside. We would not interfere with the acquittal
under Section 354-B IPC. The accused persons-respondent nos. 2 to
6 are directed to surrender in the court below within a period of six
weeks from today.
Patna High Court CR. APP (DB) No.501 of 2024 dt.21-02-2025
30/30
46. Since respondent nos. 2 to 6 were on bail, on their
surrender, they would be enlarged on bail on furnishing proper
sureties to the satisfaction of the learned trial court. If they do not
turn up within the prescribed period, the learned trial court shall
take coercive steps to procure their presence.
47. This appeal stands disposed of accordingly.
(Rajeev Ranjan Prasad, J)
( Shailendra Singh, J)
SUSHMA2/-
AFR/NAFR CAV DATE Uploading Date 05.03.2025 Transmission Date 05.03.2025