IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (SJ) No.702 of 2012 Arising Out of PS. Case No.-153 Year-1994 Thana- BARHARA KOTHI District- Purnia ====================================================== 1. Biren Sah, S/O Anirudh Sah, 2. Rajesh Sah @ Rajesh Kumar @ Bablu Sah @ Bablu, S/O Kamleshwari Sah 3. Kamlesh Sah @ Kamleshwari Sah, S/O Badri Sah, 4. Bipin Sah, S/O Badri Sah 5. Nago Sah @ Nago @ Nageshwar Sah, S/O Badri Sah 6. Umesh Sah, S/O Anirudh Sah All resident Of Village- Barhara, Police Station- Barhara, District- Purnea ... ... Appellant/s Versus The State Of Bihar ... ... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Sanjay Kumar, Amicus Curiae For the Respondent/s : Mr. Abhay Kumar, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH ORAL JUDGMENT Date : 02-07-2026 Heard Mr. Sanjay Kumar, learned Amicus Curiae and Mr. Abhay Kumar, learned APP for the State. 2. The present appeal has been filed for setting aside the judgment of conviction and order of sentence dated 31.07.2012 passed by the 1st Additional Sessions Judge, Purnea in S.T. No.282/97 arising out of Barhara P.S. Case No. 153/1994, whereby and whereunder, the appellants have been convicted for the offence punishable under Sections 147,148 and 323 of the Indian Penal Code and they were directed to be released on furnishing probation bond of Rs. 10,000/- with two Patna High Court CR. APP (SJ) No.702 of 2012 dt.02-07-2026 2/17 sureties of the like amount each for a period of one year for maintaining peace and tranquility and good character and if it is found that they commit such type of act during the period of probation, they will be called and substantive sentence will be inflicted against them. BRIEF FACTS OF THE CASE 3. The prosecution case, in brief, is that a dispute arose between the informant's family and the neighbouring family of Badari Sah over obstruction caused in flow and drainage of rainwater caused by a ridge constructed by the appellants, resulting in waterlogging in front of the informant's house. While the informant's children were removing the ridge, an altercation ensued between the womenfolk of both families, followed by brick-batting. Thereafter, the accused persons, namely Nago Sah, Kamleshwari Sah, Bipin Sah, Umesh Sah, Biren Sah and Bablu Sah, allegedly formed an unlawful assembly armed with lathis, farsa and arrows and assaulted the informant, his cousin Manoj Sah and other family members. It is alleged that Nago Sah assaulted Manoj Sah with an arrow, Umesh Sah and Bablu Sah inflicted farsa blows on the informant, while the remaining accused assaulted the victims with lathis. On the basis of the fardbeyan, the formal FIR was Patna High Court CR. APP (SJ) No.702 of 2012 dt.02-07-2026 3/17 registered, investigation was conducted and, on completion thereof, charge-sheet was submitted against all the accused persons. ARGUMENT ON BEHALF OF Amicus Curiae 4. Learned Amicus Curiae submitted that the impugned judgment of conviction and order of sentence are unsustainable in law, as well as, on facts. The prosecution has failed to establish the charges beyond reasonable doubt. The genesis of the occurrence has not been properly proved and the case admittedly arose out of a sudden altercation between the informant and the accused persons, who are neighbour, over the drainage of rainwater. Out of eight prosecution witnesses, P.Ws. 2, 7 and 8 did not support the prosecution case and were declared hostile. The Investigating Officer was not examined, which has caused serious prejudice to the appellants, who were not given the opportunity to prove material contradictions and omissions in the statements of the prosecution witnesses. Learned trial Court failed to appreciate that the defence had brought on record that there exists previous enmity between the parties through Ext. A, which establishes the motive for their false implication. The evidence of the interested and related witnesses, namely P.Ws. 3, 4 and 5, was accepted without Patna High Court CR. APP (SJ) No.702 of 2012 dt.02-07-2026 4/17 independent corroboration, although the prosecution version suffered from material inconsistencies regarding the manner of assault and the weapons allegedly used. 5. Learned Amicus Curiae further submitted that the medical evidence does not support the prosecution allegation that the appellants assaulted the injured persons with deadly weapons such as farsa and arrows. The doctor (P.W.6) found only simple injuries caused by hard and blunt substances and did not find any incised or penetrating injury corresponding to the alleged use of farsa or arrow. Further defence case is that in absence of any material evidence, the learned trial court was bound to disbelieve the prosecution case under Sections 307 and 324 IPC. Once the specific allegations regarding use of deadly weapons were found to be unsubstantiated, the entire prosecution case became doubtful. In the facts and circumstances of the case, the prosecution failed to prove the formation of an unlawful assembly and the individual participation of each appellant beyond reasonable doubt. The appellants are, therefore, entitled to the benefit of doubt and deserve to be acquitted of all the charges. ARGUMENT ON BEHALF OF THE STATE 6. Per contra, learned APP appearing for the State Patna High Court CR. APP (SJ) No.702 of 2012 dt.02-07-2026 5/17 while opposing the appeal submitted that the learned District court, after considering all the evidences on record and exhibits submitted on behalf of the parties during the course of trial, has rightly convicted the appellants for said offences. ANALYSIS AND CONCLUSION 7. Heard the parties. 8. I have perused the lower court records and proceedings and also taken note of the arguments canvassed by learned counsel appearing on behalf of the parties. 9. The learned trial court, on the basis of materials as collected during the course of investigation, passed the Judgment of conviction and order of sentence dated 31.07.2012 for the offences under Section 147, 148 and 323 of the IPC. 10. During the trial, the prosecution has examined altogether eight witnesses, namely: (i) (P.W.-1),- Md. Rasool (ii) (P.W.-2),- Kusheshwar Sah (Hostile) (iii) (P.W.-3),- Binod Kumar Sah (iv) (P.W.-4) ,- Manoj Kumar Sah (v) (P.W.-5),- Subodh Kumar Sah (Informant) (vi) P.W.6 – Dr. Ashok Kumar Thakur (vii) P.W.7 – Bimal Sah (Hostile) Patna High Court CR. APP (SJ) No.702 of 2012 dt.02-07-2026 6/17 (viii) P.W.8 – Md. Ahmad Hussain (Hostile) 11. During the trial, the defence has examined one witness, namely, Bijay Kumar Bhagat 12. The prosecution has also relied upon following documents exhibited during the course of trial:- (i) Ext.1 – Signature of Subodh Kumar Sah on FIR (ii) Ext.2 – Injury Report of Manoj Kumar Sah (iii) Ext.2 a – Injury report of informant Subodh Kumar Sah (iv) Ext.3- Formal FIR (v) Ext. A- Written FIR dated 23.06.1993 13. From the perusal of the records the statements of the prosecution witnesses are as under: (i) P.W.1-Md. Rasool is an eyewitness. He deposed that on hearing alarm he reached the place of occurrence and found an altercation between the two sides. He stated that Bablu Sah assaulted Subodh Sah with a farsa, Nago Sah assaulted Manoj Sah with an arrow and the other accused assaulted Subodh Sah, Manoj Sah and Binod Sah with lathis. He further stated that the injured were taken to the hospital. In cross- examination, nothing material was elicited to discredit his testimony. Patna High Court CR. APP (SJ) No.702 of 2012 dt.02-07-2026 7/17 P.W.2 – Kusheshwar Sah did not support the prosecution case and was declared hostile. P.W.3 – Binod Kumar Sah, an injured witness, supported the prosecution case. He stated that the accused persons assaulted the informant and his family members with farsa, arrow and lathis. He attributed specific overt acts to the accused persons and remained consistent during cross- examination. P.W.4 – Manoj Kumar Sah is the injured victim. He fully supported the prosecution version and stated that Nago Sah assaulted him with an arrow, while other accused assaulted him with lathis and the informant was assaulted with farsa by Umesh Sah and Bablu Sah. His testimony remained unshaken in cross-examination. P.W.5 – Subodh Kumar Sah (Informant) reiterated the allegations made in the fardbeyan regarding the dispute over rainwater, the ensuing altercation and the assault by the accused persons. He specifically stated that Umesh Sah and Bablu Sah assaulted him with farsa and that the remaining accused assaulted him and other family members with lathis, while Nago Sah assaulted Manoj Sah with an arrow. His evidence remained substantially intact during cross- Patna High Court CR. APP (SJ) No.702 of 2012 dt.02-07-2026 8/17 examination. P.W.6 – Dr. Ashok Kumar Thakur medically examined Manoj Kumar Sah and Subodh Sah. He found three simple injuries on Manoj Kumar Sah, namely one lacerated wound with bruise over the abdomen and two abrasions, all caused by hard and blunt substances. On Subodh Sah, he found an abrasion on the head and a bruise on the left wrist, both simple in nature. He opined that the injuries were caused by hard and blunt or rough substances. P.W.7 – Bimal Sah did not support the prosecution case and was declared hostile. P.W.8 – Md. Ahmad Hussain also failed to support the prosecution case and was declared hostile. D.W.1, Bijay Kumar Bhagat, a formal witness, who proved an earlier written FIR dated 23.06.1993 (Ext. A) to suggest previous enmity between the parties. 14. The learned trial Court, upon proper analysis of the witnesses and the material which came in course of investigation, as well as, in course of trial, has given its finding, inter alia, as follows: "6. In order to prove the charges prosecution has examined 8 witnesses. P.W. 1 is Md. Rasool.P.W.2 is Kusheshwar Sah. P.W.3 is Binod Kumar Sah. P.W.4 Manoj Kumar sah is victim himself. P.W.5 Subodh Kumar Jah is infomant himsel P.W.6 is Dr. Ashok Kumar Thakur, who has Patna High Court CR. APP (SJ) No.702 of 2012 dt.02-07-2026 9/17 examined the victims of this case. P.W.7 is Bimal Sah and P.w.8 is Md. Ahmad Hussain. 1.0. has not been examined in this case by the prosecution. Besides the oral evidences some documents hak also been exhibited by the prosecution.Ext.1 is signature of informant Subodh Kumar sah on the fardbeyar Ext. 2 is injury report of Manoj Kumar Sah. Ext. 2/a is injury report of informant Subodh Sah and Ext. 3 is formal F.I.R. The accused persons have also examined a witness Bijay Kumar Bhagat in their defence. He is a, formal witness and he has just proved a written F.I.R. dated 23.6.93 which was marked Ext. A. It has been proved to show the enemity between the accused persons and P.W.1 Md. Rasool. 7. P.W.1 Md. Rasool has fully supported the prosecution case and has stated that his house is in side of house of accused persons and the informant. On hulla he went there and saw that hot discussions and abusing was going on between both sides. Bablu sah gave a blow of farsa on Subodh Sah and Nago Sah assaulted Maroj sah with arrow. Other accused persons assaulted Binod şah, sulod sah and Manoj Sah with lathi. Subodh Sah and Manoj sah became injured and their father Deo Narayan Sah and Satya Narain Sah took them to the hospital. In the cross examination also this witness has supported the prosecution case.Nothin has come in the cross examination which will creat any doubt on the version of the prosecution. Suggestion has ween given to this witress that the informant side assaulted the accused persons. They assaulted Babloo san also. This suggestion itself shows that some occurrence took place. 8. P.ws, 2,7 and 8 were declared hostile by the prosecution because they did not supported the prosecution case and stated before the Court that they knew rothing about the occurrence. 9. P.Ws. 3,4 and 5 are victims of this case. They have also supported the prosecution case fully. They have stated that accused persons assaulted them with farsa, arrow and lathi. They have taken the name of all accused persons: They have also stated that which accused persons assaulted whom. It has also come in the statement of all these 3 witnesses that the accused persons Umesh Sah assaulted the informant with farsa. Nago sssaulted Umesh Sah with arrows. Babloo Sah also assaulted the Informant with farsa. Other accused persons assaulted him with lathis. The statements of all these witnesses are, consistent and there is no any contradiction in their testimony. Even in their cross examination nothing has come which may create any doubt against the statement of the prosecution. During the cross examination the defence has tried to show the enmity between both sides. But only on the basis of enmity statement of witnesses can not be discarded and the defence Patna High Court CR. APP (SJ) No.702 of 2012 dt.02-07-2026 10/17 has got chance to verify the testimony of the witnesses by lengthy cross examination and gothing has been gain by the defence. Enmity cuts in both ways. S0, this defence is not tenable at all. 9. P.W.6 Dr. Ashok Kumar Thakur who has examined two victims namely Manoj Kumar sah and Subodh sah has stated that he found 3 injuries on the persons of Manoj Sah. Firstly lacerated wound with bruise 12" x 2" over abdomen(ii) Abraison over left fore arm.(iii) Abrasion over shoulder over posterior reason. All the injuries were simple in nature and caused by hard and blunt subs-stances. The Doctor has found two injuries on the person of informant Subodh sah. Injury no.1 Abraision over the head with blood clot size 3" X 4" and 2nd injury is bruise over left wrist. He has given opinion that injury no. i cannot be said to be caused by any rough substance. Both the injuries were simple in nature. second injury was caused by hard and blunt substance. 10. On perusal of the statement of Doctor and the witnesses I found that all the injuries on the person of of Manoj sah and Subodh Sah were caused by hard and blunt substance or rough substance. They were simple in nature. No accused tried to repeat the blow of lathi farsa and arrow. This fact shows that the accused persons were not having any intention to cause death to any body. There was no circumstances to stop the accused persons from committing the murder but they did not do so. This fact clearly shows that the accused persons were only having intention to assault the informant and his family members. Therefore, the prosecution has failed to prove the charges' u/s 307 and 324 of I.P.C. proved that the accused persons but the prosecution has forming an unlawful assembly with deadly weapon, and assaulted the informant Manoj Sah and his other family members. Therefore, the prosecution has proved the Offences u/s 147,148 and 323 of I.P.C. beyond the shadow of reasonable doubt on the basis of statement of witnesses Non examination of I.0. will not make any difference on the merit of the prosecution because the statement of all the witnesses are consistent without contradiction and no vital contradiction has been taken from any witness that he did not. gave such statement before the I.0. so, the non examination of I.0. has not made any difference on the merit of the case. On the basis of the above discussions I came to the conclusion that the prosecution has proved the charge against all the accused persons u/s 147,148 and 323 of I.P.C. and I hold ail the 6 accused persons guilty u/s 147,148 and 323 of 1.P.C. Balloonds of accused persons are cancelled and they are taken into custody. " Patna High Court CR. APP (SJ) No.702 of 2012 dt.02-07-2026 11/17 15. To judge the legality of the impugned order of conviction, I find it appropriate to reproduce the provisions of Sections 299, 323 and 324 of I.P.C. for reappreciating the facts and circumstances of the case, which, inter alia, are reproduced as under:- "299. Culpable homicide.— Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Illustrations (a)A lays sticks and turf over a pit, with the intention of thereby causing death, or with the knowledge that death is likely to be thereby caused. Z believing the ground to be firm, treads on it, falls in and is killed. A has committed the offence of culpable homicide. (b)A knows Z to be behind a bush. B does not know it A, intending to cause, or knowing it to be likely to cause Z’s death, induces B to fire at the bush. B fires and kills Z. Here B may be guilty of no offence; but A has committed the offence of culpable homicide. (c)A, by shooting at a fowl with intent to kill and steal it, kills B who is behind a bush; A not knowing that he was there. Here, although A was doing an unlawful act, he was not guilty of culpable homicide, as he did not intend to kill B, or to cause death by doing an act that he knew was likely to cause death. Explanation 1.— A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death. Explanation 2.— Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented. Explanation 3.— The causing of the death of child in the mother’s womb is not homicide. But it may amount to culpable homicide to cause the Patna High Court CR. APP (SJ) No.702 of 2012 dt.02-07-2026 12/17 death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born. 323. Punishment for voluntarily causing hurt.— Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both. 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, used as 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." 16. It is well settled that an attempt to commit murder must be clearly distinguished from a mere intention to commit the offence or from acts that amount only to preparation for its commission. The law recognizes that the existence of a guilty intention alone is not sufficient to constitute an attempt. There must be something more than planning or arranging the means to commit the crime. Therefore, in order to secure a conviction, the prosecution must prove the presence of a definite intention or knowledge to cause death, accompanied by some overt act that directly moves towards the execution of that intention. In Patna High Court CR. APP (SJ) No.702 of 2012 dt.02-07-2026 13/17 other words, the accused must not only possess the intention to commit murder but must also perform an act that clearly demonstrates the commencement of the offence. 17. The Apex Court laid down the litmus test for determination of nature of offence in Pulicherla Nagaraju v. State of A.P. reported in (2007) 1 SCC (Cri) 500. In the facts and circumstances of a particular case, the Court needs to decide the pivotal question of existence of intention with care and caution. The following factors needs to be examined: "(i) nature of the weapon used; (ii)whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii)whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows." 18. The similar question came up before the Supreme Court in the case of Joseph v. State of Kerala, reported in 1995 SCC (Cri) 165 has observed in para 3 which is reproduced Patna High Court CR. APP (SJ) No.702 of 2012 dt.02-07-2026 14/17 hereinafter: “3. In this appeal the learned counsel for the appellant submits that the intention to cause the injury which was found sufficient to cause the death in the ordinary course of the nature was not established. In support of this submission he relied on the circumstances namely that the whole incident took place because of a trivial incident which resulted in a quarrel and that the weapon used was only a lathi and in the circumstances it cannot be said that the accused intended to cause the death by inflicting that particular injury which objectively was proved by the medical evidence to be sufficient in the ordinary course of nature to cause death. In other words he submits that clause 3rdly of Section 300 IPC is not attracted in this case. We find considerable force in the submission. The weapon used is not a deadly weapon as rightly contended by the learned counsel. The whole occurrence was a result of a trivial incident and in those circumstances the accused dealt two blows on the head with a lathi, therefore, it cannot be stated that he intended to cause the injury which is sufficient (sic). At the most it can be said that by inflicting such injuries he had knowledge that he was likely to cause the death. In which case the offence committed by him would be culpable homicide not amounting to murder. We accordingly set aside the conviction of the appellant under Section 302 IPC and the sentence of imprisonment for life awarded thereunder. Instead we convict the appellant under Section 304 Part II IPC and sentence him to five years' RI.” 19.The judgment of Joseph (supra) was referred by the Apex Court in the case of Jugatram Vs. State of Chhattisgarh, reported in (2020) 9 SCC 520. 20. In view of the aforesaid discussion of the factual Patna High Court CR. APP (SJ) No.702 of 2012 dt.02-07-2026 15/17 and legal aspects, and upon a comprehensive re-appreciation of the entire oral and documentary evidence available on record, this Court finds that certain discrepancies have surfaced in the prosecution evidence. While P.W.-3, P.W.-4 and P.W.-5 have stated that the arrow was removed from the abdomen of the injured at the hospital, the medical evidence does not corroborate the said assertion, as the doctor has nowhere stated that he had extracted the arrow from the abdomen of Manoj Sah. There are also material inconsistencies regarding the persons who took the injured to the hospital. Whereas P.W.-1 stated that the father of the victims, namely Dev Narayan Sah and Satyanarayan Sah, had taken the injured to the hospital, P.W.-4 stated that the villagers and other witnesses had taken them, while P.W.-5 merely deposed that he himself had gone to the hospital. It is further evident that only P.W.-5 has stated that the accused persons had also instituted a criminal case against the prosecution side, which indicate the existence of prior enmity and revenge leading to lodging of a case and counter-case. Significantly, the Investigating Officer has not been examined depriving the defence to the opportunity to prove contradictions in the statements of the prosecution witnesses and to test the fairness of the investigation. Moreover, neither the alleged Patna High Court CR. APP (SJ) No.702 of 2012 dt.02-07-2026 16/17 arrow nor the farsa was recovered during investigation, and the alleged weapon of offence was never produced or exhibited before the Court. 21. These deficiencies and inconsistencies are not of such a nature as to demolish the core of the prosecution case or render the ocular evidence of the injured witnesses unreliable. The evidence of the injured witnesses inspires confidence and stands substantially corroborated by the medical evidence regarding the nature of the injuries sustained by them. The omissions on the part of the Investigating Officer and the non- recovery of the weapon are lapses in investigation, which by themselves cannot be made a ground to discard otherwise credible and trustworthy evidence. This Court, therefore, does not find any illegality, perversity or infirmity in the appreciation of evidence by the learned Trial Court while recording the conviction of the appellants, however, appellants were released on probation of good conduct under Section 4 of the Probation of Offenders Act, 1958, upon their executing bonds to maintain peace and good behaviour for a period of one year. I find that the appellants have already been released vide order/judgment dated 31.07.2012 and no adverse report against the appellants is placed before this Court, they are accordingly directed to be Patna High Court CR. APP (SJ) No.702 of 2012 dt.02-07-2026 17/17 released. 22. Accordingly, the present appeal is allowed. 23. The Patna High Court Legal Services Committee is, hereby, directed to pay a sum of Rs. 10,000/- (Rupees Ten Thousand) to Mr. Sanjay Kumar, learned Amicus Curiae, as consolidated fee, for rendering his valuable professional service for disposal of the present appeal. 24. Office is directed to send back the lower court records along with a copy of the judgment to the learned District Court forthwith. Niraj/- (Purnendu Singh, J) AFR/NAFR A.F.R. CAV DATE N/A Uploading Date 08.07.2026 Transmission Date 08.07.2026