IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (SJ) No.295 of 2004 Arising Out of PS. Case No.-137 Year-1994 Thana- SAHPUR District- Bhojpur ====================================================== 1. Ayodhya Yadav S/o- Kashi Yadav Village- Saia ka Dera Ps- Shahpur Dist- Bhojpur ( Case against the appellant was abated vide Honorable Court Order Dt. 20.02.2025) 2. Bhuar Yadav S/o- Kashi Yadav Village- Saia ka Dera Ps- Shahpur Dist- Bhojpur 3. Kamta Yadav S/o- Kashi Yadav Village- Saia ka Dera Ps- Shahpur Dist- Bhojpur ... ... Appellant/s Versus The State of Bihar ... ... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Ritwaj Raman, Amicus Curiae For the Respondent/s : Mrs. Anita Kumari Singh, Adv. ====================================================== CORAM: HONOURABLE JUSTICE SMT. G. ANUPAMA CHAKRAVARTHY ORAL JUDGMENT Date : 08-10-2025 1. This appeal is arising out of the judgment of conviction and order of sentence dated 23.02.2004 passed by the Additional District and Sessions Judge, FTC-II, Ara Bhojpur in Sessions Trial No. 326 of 1997, whereby and whereunder the appellants were convicted under Section 323 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six months. Patna High Court CR. APP (SJ) No.295 of 2004 dt.08-10-2025 2/33 2. Altogether four accused were tried before the Sessions Court, namely, Ayodhya Yadav, Bhuwar Yadav, Kanta Yadav and Kashi Yadav. However, the trial Court considering the old age of Kashi Yadav released him after admonition under Section 3 of Probation of Offenders Act, 1958. 3. The present Criminal Appeal pertains to the year 2004. On 29.08.2024 as well as on 20.02.2025, there was no representation for the appellants, therefore, this Court called for a report from the Superintendent of Police, Bhojpur, Ara to verify whether the appellants are alive or not? 4. Pursuant to the order’s of this Court, a report was received from the Superintendent of Police Bhojpur at Ara, vide Letter No. 64 dated 10.02.2025, which disclose that appellant No. 1 Ayodhya Yadav died 15 years ago. Consequently, this Court vide order dated 22.02.2025 abated the appeal against appellant Patna High Court CR. APP (SJ) No.295 of 2004 dt.08-10-2025 3/33 No. 1/ Ayodhya Yadav. 5. It is important to note that since there was no assistance from the learned counsel for the appellants, this Court was constrained to appoint Shri Ritwaj Raman as Amicus Curiae on 19.03.2025 to assist the Court. In view of the abatement, the present appeal now, is being proceeded only against appellant Nos. 2 and 3 i.e. Bhuar Yadav and Kamta Yadav. 6. The case of the prosecution in brief is that on 06.11.1994 at about 06:00 to 06:30 A.M., the informant/Dharamraj Yadav along with his brother’s wife and mother were filling earth near his Nad and Charan on a Gair- Majruwa (government) land. 7. At that time, accused Kashi Yadav was armed with lathi, Kamta Yadav was holding a farsa, Bhuar Yadav and Ayodhya Yadav were also holding lathis in their hands came to the place of occurrence. It is alleged that Kashi Patna High Court CR. APP (SJ) No.295 of 2004 dt.08-10-2025 4/33 Yadav caught hold of the informant from behind and instigated others to kill him. On that, Kamta Yadav inflicted a farsa blow on the head of the informant, causing cut injuries, while accused Ayodhya Yadav indiscriminately assaulted him with a lathi, resulting in injuries on his head and body. 8. During the incident, accused Kashi Yadav also sustained injury on his head. Bhuar Yadav allegedly assaulted the informant’s brother’s wife named Lakshminia Devi, with a lathi due to which she sustained injuries on her head and body. When the mother of the informant tried to rescue the informant, Kashi Yadav assaulted her with a lathi causing injuries on different parts of her body. 9. On hearing the alarm raised, several other villagers including Dhanjee Yadav and Sushila Devi, reached the place of occurrence, upon which all the four accused fled away. 10. Basing on the fardbeyan of the Patna High Court CR. APP (SJ) No.295 of 2004 dt.08-10-2025 5/33 informant, a case was registered against all four accused vide Case No. 137 of 1994 on the file of Shahpur Police Station for the offences punishable under Section 341, 307, 323, 324 read with 34 of IPC. After completion of investigation, a charge sheet was filed and the Learned Chief Judicial Magistrate took cognizance on 18.05.1996. The case was thereafter, committed to the Court of Sessions on 29.09.1997. The trial Court framed charges on 04.07.1998 under Section 323 of IPC against Bhuar Yadav and Ayodhya Yadav, under Section 114 r/w 307, 341 and 323 of IPC against Kashi Yadav, and under Section 307 of IPC against Kamta Yadav, Bhuar Yadav and Ayodhya Yadav. The charges were read over and explained to all the accused for which they pleaded not guilty and claimed to be tried. 11. During the course of trial, prosecution examined altogether 6 witnesses and four exhibits were marked which are as Patna High Court CR. APP (SJ) No.295 of 2004 dt.08-10-2025 6/33 follows:- Sl. No. Prosecution witness name Prosecution witness details P.W.1 Dharamraj Yadav Informant P.W.2 Laxminia Devi Injured P.W.3 Dhanjee Yadav Alleged eye witness P.W.4 Sheo Jharia Devi Injured P.W.5 Ram Naresh Singh A.S.I./I.O. P.W.6 Dr. Ashok Kr. Singh Doctor Sl. No. List of Exhibits Details of Exhibits 1 Exhibit-1 Signatature of P.W./Informant on the fardbeyan 2 Exhibit-2 Injury Report of the informant 3 Exhibit-2/A Injury Report of Jitan Yadav but on perusal, it is of Seho Jharia Devi i.e. P.W. 4 4 Exhibit-2/B Injury Report of Mutan Yadav but on persual, it is of Laxminia Devi i.e. P.W. 2 12. Considering the entire material on record, the trial Court convicted the appellants for the offence punishable under Section 323 of IPC and sentenced them to undergo rigorous imprisonment for six months. However, they were acquitted of the charge under Section 307 Patna High Court CR. APP (SJ) No.295 of 2004 dt.08-10-2025 7/33 of IPC as stated hereinabove. The accused Kashi Yadav was released after admonition under Section 3 of the Probation of Offenders Act, 1958. 13. It is relevant to mention that though charges were framed against Kashi Yadav under Section 114 r/w section 307, the trial court neither convicted nor acquitted him for the said offences. 14. In light of the above, the point for determination in this appeal is that - I. whether the trial Court is right in convicting and sentencing the appellants/Bhuar Yadav and Kamta Yadav under Section 323 of IPC? II. Whether the prosecution is able to prove the guilt of the appellants for the offence punishable under Section 323 of IPC beyond reasonable doubt? 15. In order to decide the aforesaid points for determination, it is necessary to re- Patna High Court CR. APP (SJ) No.295 of 2004 dt.08-10-2025 8/33 appreciate the evidence available on record. The evidence of PW 1 i.e. Dharam Raj Yadav disclose that the incident took place on 06.09.1994 between 06:00 to 06:30 A.M. and at that point of time, he was feeding his cattle and filling soil, at some distance from his house on a government land and P.W. 2/ Lakshminia Devi was accompanying him. 16. It is stated that accused Kashi Yadav, Bhuar Yadav and Ayodhya Yadav were holding lathis, whereas Kamta Yadav was holding farsa, reached the place of occurrence, where Kashi Yadav caught hold of the waist of P.W. 1 from behind and instigated the others to kill him. Upon this Kamta Yadav assaulted him with farsa on his head, for which he sustained head injury. While, Bhuar Yadav and Ayodhya Yadav assaulted him with lathis resulting in fracture of his right hand finger. In the said incident, Kashi Yadav also sustained injuries while holding the informant. Patna High Court CR. APP (SJ) No.295 of 2004 dt.08-10-2025 9/33 17. Further, Bhuar Yadav assaulted P.W.- 2 on her head with a lathi, for which she sustained head injuries. When the mother of PW 1, namely, Shivjharia Devi tried to rescue him, Kashi Yadav hit her with a lathi causing injuries on her head, shoulder and other parts of the body. His evidence further disclose that Dhanji Yadav, Sushila Devi and other villagers witnessed the incident, thereafter, he went to Kharpur Outpost, where he gave his fardbeyan, and his signature on the fardbeyan was marked as Exhibit-1. 18. In cross-examination, it is admitted by P.W. 1 that there was a dispute regarding the government land and that five or six persons were in possession of it. He also stated that there was no prior enmity between them before preferring the fardbeyan. It is his specific evidence that though Kashi Yadav was holding a lathi, he did not use it, to assault him but only caught hold of his waist. Patna High Court CR. APP (SJ) No.295 of 2004 dt.08-10-2025 10/33 19. It was further admitted by P.W.1 that the accused Kashi Yadav also sustained injuries in the said incident and that blood had oozed out from of his wounds. He further stated that prior to the lodging of fardbeyan, Kashi Yadav had already gone to Police Station. Where the police remanded him and about fifteen minutes later P.W. 1 also reached the Police Station. The Investigating Officer registered a case against Kashi Yadav and referred the informant, to Shahpur hospital for medical examination. 20. The evidence of P.W. 2 / Lakshminia Devi and P.W. 4 / Shivjharia Devi is also in the same lines with that of PW. 1. In the cross- examination, P.W. 2 stated that she was alone at home with her children at the time of incident and she did not know whether the place of occurrence was government land or not? She further testified that she found injuries on the body of informant/ P.W. 1 particularly on his forehead and that he fell unconscious after Patna High Court CR. APP (SJ) No.295 of 2004 dt.08-10-2025 11/33 sustaining the said injuries. 21. In the cross-examination, P.W. 4 testified that after hearing the noise, she rushed to the place of occurrence and found PW 1 lying soaked in blood and unconscious. Several villagers gathered at the spot, though she could not name them as she herself had sustained injuries in the incident. She further stated that she used a bamboo stretcher to carry her injured son, to police station, where they gave their statements and affixed their thumb impressions. Thereafter, they were referred to Shahpur hospital for treatment. She also admitted that they were living on government land. . 22. The evidence of P.W. 3 disclose that about four years prior to his deposition, P.Ws. 1, 2 and 4 had sustained injuries and at that time, he was feeding his cattle near the place of occurrence. He deposed that Kashi Yadav, Ayodhya Yadav and Bhuar Yadav were armed with lathis while Kamta Yadav was holding a Patna High Court CR. APP (SJ) No.295 of 2004 dt.08-10-2025 12/33 farsa, reached the place of occurrence, Kashi Yadav caught hold of P.W. 1 by the waist and instigated others to kill him. On that Kamta Yadav assaulted P.W. 1 on the head with a farsa, due to which he sustained head injuries. In the meantime, Bhuar Yadav, Ayodhya Yadav assaulted PW 1 with lathis, when P.W. 2 tried to save P.W. 1 they assaulted her as well. When PW 4 (mother of P.W. 1) tried to intervene Kashi Yadav assaulted on her hand. 23. In the cross-examination, it is admitted by P.W. 3 that he reached the place of occurrence after the incident. Hence, the evidence of P.W. 3 being hearsay in nature cannot be given much weightage. 24. The evidence of PW 5, the A.S.I., disclose that he was assigned the charge of investigation in Shahpur P.S. Case No. 137 of 194 on 17.11.1994, and further testified that one Kameshwar Singh (A.S.I.) had conducted the initial investigation. During the course of Patna High Court CR. APP (SJ) No.295 of 2004 dt.08-10-2025 13/33 investigation, he received the supervision note of the inspector and the injury report of the victims, based on which he submitted the chargesheet. In cross-examination, it is specifically admitted P.W.5 that except receiving the supervision note and injury report, he did not conduct any investigation the case and the entire investigation was done by A.S.I. Kameshwar Singh. 25. It is important to note that A.S.I. Kameshwar Singh was not examined before the Court for the reasons best known to the prosecution. 26. The evidence of P.W. 6/Dr. Ashok Kumar Singh disclose that on 06.11.1994, while he was posted at Referral Hospital, Shahpur, he examined PW-1 at 01:10 P.M. and found the following injuries:- i. Lacerated wound 4x1/2x1/2 on the right side scalp. ii. Swelling 2x1/2x1/2 on the right Patna High Court CR. APP (SJ) No.295 of 2004 dt.08-10-2025 14/33 dorson of hand. It is opined by P.W.6 that the injuries sustained by PW-1 and between within 6 to 12 hours and the Injury Report of P.W. 1 is Exhibit- 2. He further testified that he examined Sheo Jhari Devi w/o Jitan Yadav at 01:00 P.M. and found the following injury:- One swelling injury 4x1x1 on the left dorson of hand. He opined that injury sustained by PW-4 is within 6 to 12 hours and was simple injury. The injury report is Exhibit 2/A. He further testified that he examined Lakshminia Devi/P.W. 2 on the same day at 12:45 P.M. and found the following injuries:- i. One lacerated wound 3x1/2x1/2 on the right side of scalp. ii Swelling over the right side of scalp. He opined that injuries sustained by PW-2 is within 6 to 12 hours and were simple in nature. Patna High Court CR. APP (SJ) No.295 of 2004 dt.08-10-2025 15/33 The Injury Report of P.W. 2 is Exhibit 2/B. 27. In the cross-examination, he stated that several factors are to be considered for determining the age of an injury including its colour, which was not mentioned in the Injury Reports. It is admitted by P.W. 6 that if someone takes risk, such injuries may be concocted. 28. Heard the Learned Amicus Curiae Mr. Ritwaj Raman as well as the Learned Additional Public Prosecutor Mrs. Anita Kumari Singh. 29. It is urged by the Learned Amicus Curiae that nature of injuries and the mode of assault are inconsistent with the fardbeyan and the testimonies of the witnesses. Further, the non-examination of the Investigating Officer is fatal to the case of the prosecution. 30. It is further contended by the Learned Amicus Curiae that if two views are possible, the view which benefits the accused has to be taken into consideration and the trial Patna High Court CR. APP (SJ) No.295 of 2004 dt.08-10-2025 16/33 Court failed to extend such benefit, therefore, prayed to set aside the judgment of conviction as well as the order of sentence. It is further contended by the Amicus Curiae that the punishment prescribed under Section 323 of IPC is either by way of imprisonment or by way of fine. As the appellants were convicted and sentenced for imprisonment for six months, prayed to take a lenient view to modify the sentence to fine only. 31. On the other hand, the Learned Additional Public Prosecutor Mrs. Anita Kumari Singh contended that three persons sustained injuries in the case and the trial Court has rightly convicted the appellants and, therefore, prayed to confirm the judgment of the trial Court. 32. On perusal of the entire evidence, it is evident that P.W. 1, 2 and 4 as well as Kashi Yadav sustained injuries in the incident. The record reveals that Kashi Yadav was released Patna High Court CR. APP (SJ) No.295 of 2004 dt.08-10-2025 17/33 after admonition, whereas appellants were convicted under Section 323 of IPC and sentenced to undergo rigorous imprisonment for six months. 33. As per the fardbeyan, Ayodhya Yadav was holding a lathi, assaulted P.W. 1 on his body. However, the evidence of P.W. 1 clearly disclose that Ayodhya Yadav had injured his right hand finger. Admittedly, P.Ws. 3 and 4 were also injured in the incident. The evidence of P.W. 2 disclose that Ayodhya Yadav himself sustained injuries. 34. As per the fardbeyan, Ayodhya Yadav, Bhuar Yadav, Kashi Yadav were holding lathis in their hands and Ayodhya Yadav assaulted on the head and body of P.W. 1, Bhuar Yadav assaulted on the head and body of P.W. 2, Kamta Yadav hit P.W. 1 over his head with farsa, Kashi Yadav injured the left shoulder joint and also assaulted the body and hands of P.W. 4. Patna High Court CR. APP (SJ) No.295 of 2004 dt.08-10-2025 18/33 35. However, the deposition of P.W. 1 disclose that Ayodhya Yadav hit on the right hand finger of P.W. 1, Bhuar Yadav also injured P.W. 1 on the right hand finger and also injured P.W. 2 on her head, Kamta Yadav injured P.W. 1 with farsa over her head and Kashi Yadav injured P.W. 4 on the hand, shoulder and other parts of the body. Thus, there are inconsistencies between the fardbeyan and the evidence of P.W. 1 regarding the nature and location of injuries sustained by P.W. 1. 36. As per the fardbeyan, P.W. 1 sustained injuries on his head and body due to lathi blow assaulted by Ayodhya Yadav. However, the evidence shows that Ayodhya Yadav caused injury to P.Ws right hand finger. Likewise, the evidence of PW 2 is also inconsistent with that of fardbeyan. As far as holding the weapons are concerned, there are no inconsistencies but she did not mention in her evidence about the injuries sustained by Patna High Court CR. APP (SJ) No.295 of 2004 dt.08-10-2025 19/33 her and she only stated about the injuries sustained by P.W. 1, on his head due to hit of farsa by Kamta Yadav and about the leg injury sustained by P.W.1 due to an assault by Kashi Yadav. 37. Likewise, P.W. 4 did not disclose about the weapons carried by each of the accused or the injuries sustained either by P.W. 1 or P.W. 2. Her entire evidence only disclose that she sustained injuries at the hand of Kashi Yadav. 38. Admittedly, the record reveals that Kashi Yadav had approached the Police Station to lodge a complaint, but the Investigating Officer did not register the case against the informant or others. The evidence of P.W. 1 is very much consistent that Kashi Yadav also sustained injuries in the said incident. As the original Investigating Officer was not examined before the Court, the real facts as to why a case was not registered, basing on the complaint of Patna High Court CR. APP (SJ) No.295 of 2004 dt.08-10-2025 20/33 Kashi Yadav has not come to the light. It is the specific admission of the informant that he approached the police station about 15 minutes after Kashi Yadav. However, the police have registered a case against Kashi Yadav and remanded him to judicial custody. It is the duty of the police officer to register a case and a counter case, when there are cross allegations. However, in the present case, there is no evidence that any counter case was registered against the informant’s side. 39. The Learned Amicus Curiae relied on the citations of Apex Court passed in Hem Raj and Others Vs. State of Haryana reported in (2005) 10 SCC 614, wherein their Lordships have held at Para No. 13 which reads as follows:- 13. All the above factors would not have assumed much importance if the evidence of PWs 4 and 5 could be accepted without raising an eyebrow. However, two Patna High Court CR. APP (SJ) No.295 of 2004 dt.08-10-2025 21/33 views are possible on the point whether these persons had really witnessed the attack. There is every reason to think that PW 4, on being informed by a wayfarer, would have reached near the scene of offence almost after the attack was over. The possibility of seeing all the accused attacking the deceased with the knives and "neja" from a distance of 30 feet or more, that too, in the night- time, is rather doubtful. It is not safe to rely on his version that he had seen the accused with the particular weapons in their hands. In this context, it may be noted that PW 4 did not mention the distance from which he observed the attack. In the site plan drawn to scale, the distance of the spot from where PW 4 observed the incident was given as 30 ft. It was night-time as seen from the evidence of PW 4. PW 4 or any other witness did not give almost 9.00 p.m. and most of the shops were closed, any details about the lighting in the vicinity. However, from the site plan drawn by PW 8, there was a tube light attached to the electrical pole Patna High Court CR. APP (SJ) No.295 of 2004 dt.08-10-2025 22/33 situated at 20 feet distance. It would have been difficult for PW 4 at the night-time to notice each of the accused carrying a particular type of weapon, that too a small weapon like knife. But, PW 4 came forward with the version that all the accused except one, were carrying knives and the other was carrying neja". Thus he claims to have seen so clearly as to distinguish between a nife and "neja" at that juncture, when the attack would have been almost very and PW 4 was trying to evoke the attention of the people around. It is difffficult to accept the version of PW 4 of having seen the weapon in the hand each of the accused and the nature of the weapon. The reference to "neja" particular appears to have been introduced for explaining the injuries on the body of the deceased. It seems to us that the picture given by PW 4, as if he had seen each of them with the knife or "neja" seems to be an a embellishment developed with the idea of implicating all the brothers as the accused. His further version that PW 5 having heard his Patna High Court CR. APP (SJ) No.295 of 2004 dt.08-10-2025 23/33 cries joined him and witnessed the attack seems to be a story invented for the purpose of introducing another eyewitness to corroborate his version. The possibility of PW 5 who was at a sweet shop hearing his cries, joining PW 4 and then observing the incident appears to be highly improbable. If PW 5 had already been there near Channi Chowk for purchasing sweets, he would have noticed the commotion caused by the attack and would have seen the assailants even before PW 4 arrived at the spot. But his story is different. Another factor which casts a doubt on the evidence of PWs 4 and 5 is that there were no bloodstains on their clothes, though allegedly, they placed the deceased on a cot and carried him to the hospital. Moreover, soon after his brother was declared dead, PW 4 did not go to the police station which was quite close to the hospital to lodge a report. That is not a natural course of conduct. It is on account of these doubtful features in the evidence of PW 4 that the factum of non-examination of independent Patna High Court CR. APP (SJ) No.295 of 2004 dt.08-10-2025 24/33 witness, though available, assumes importance. 40. As per the evidence, it is an admitted fact that one of the accused as well as the victims sustained injuries in the said incident. However, the police did not register any case against them. Further the investigating officer was not examined and the trial court had no chance appreciate the manner of investigation done in the case. 41. It is the specific contention of the Learned Amicus Curiae that Section 313 CR.P.C. examination was not properly conducted by the trial Court as the incriminating materials were not adequately put to the accused for their explantion. 42. Further the Learned Amicus Curiae relied on the judgment of Apex Court passed in Raj Kumar Vs. State (NCT of Delhi) 2023 (17) SCC 95 wherein their Lordships have held Patna High Court CR. APP (SJ) No.295 of 2004 dt.08-10-2025 25/33 at Para No. 19 which reads as follows:- 19. Then we come to a decision in Samsul Haque relied upon by the learned counsel for the appellant. In paras 21 to 23, this Court held thus: (SCC pp. 168-69) "21. The most vital aspect, in our view, and what drives the nail in the coffin in the case of the prosecution is the manner in which the court put the case to Accused 9, and the statement recorded under Section 313 CrPC. To say the least it is perfunctory. 22. It is trite to say that, in view of the judgments referred to by the learned Senior Counsel, aforesaid, the incriminating material is to be put to the accused so that the accused gets a fair chance to defend himself. This is in recognition of the principles of audi alteram partem. Apart from the judgments referred to aforesaid by the learned Senior Counsel, we may usefully refer to the judgment of this Court in Asraf All v. State of Assam. The relevant Patna High Court CR. APP (SJ) No.295 of 2004 dt.08-10-2025 26/33 observations are in the following paragraphs: (SCC p. 334, paras 21- 22). 21. Section 313 of the Code casts a duty on the court to put in an enquiry or trial questions to the accused for the purpose of enabling him to explain any of the circumstances appearing in the evidence against him. It follows as a necessary corollary therefrom that each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately and failure to do so amounts to a serious irregularity vitiating trial, if it is shown that the accused was prejudiced. 22. The object of Section 313 of the Code is to establish a direct dialogue between the Court and the accused. If a point in the evidence is important against the accused, and the conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity Patna High Court CR. APP (SJ) No.295 of 2004 dt.08-10-2025 27/33 of explaining it. Where no specific question has been put by the trial court on an inculpatory material in the prosecution evidence, it would vitiate the trial. Of course, all these are subject to rider whether they have caused miscarriage of justice or prejudice. This Court also expressed a similar view in S. Harnam Singh v. State (UT of Delhi) while dealing with Section 342 of the Criminal Procedure Code, 1898 (corresponding to Section 313 of the Code). Non-indication of inculpatory material in its relevant facets by the trial court to the accused adds to the vulnerability of the prosecution case. Recording of a statement of the accused under Section 313 is not a purposeless exercise.' 23. While making the aforesaid observations, this Court also referred to its earlier judgment of the three-Judge Bench in Shivaji Sahabrao Bobade v. State of Maharashtra, which considered the fallout of the omission to put to the accused a question on a vital Patna High Court CR. APP (SJ) No.295 of 2004 dt.08-10-2025 28/33 circumstance appearing against him in the prosecution evidence, and the requirement that the accused's attention should be drawn to every inculpatory material so as to enable him to explain it. Ordinarily, in such a situation, such material as not put to the accused must be eschewed. No doubt, it is recognized, that where there is a perfunctory examination under Section 313 CrPC, the matter is capable of being remitted to the trial court, with the direction to retry from the stage at which the prosecution was closed." (emphasis supplied) 43. On perusal of Section 313 examination, it is evident that only one question was put to the accused which reads as follows:- There is an evidence against you on 06.11.1994, you assaulted and injured the plaintiff Dharam Raj Yadav with a stick at Patna High Court CR. APP (SJ) No.295 of 2004 dt.08-10-2025 29/33 village Siaya Ka Dera. What have you got to say? Record reveals that only one question was asked to Kamta Yadav and two questions were put to Bhuar Yadav and Ayodhya Yadav that there is an evidence against him for inflicting injury on Dharam Raj Yadav and also assault on Lakshminia Devi. Except for these, two questions, no other incriminating material were put to the appellants depriving them of a fair opportunity to explain the same. Therefore, above citations squarely applies to the present facts and circumstances of the case. 44. Further, in Raj Kumar Vs. State (NCT of Delhi) supra at Para No. 22 guidelines were laid down which reads as follows:- 22. The law consistently laid down by this Court can be summarized as under: 22.1. It is the duty of the trial court to put each material circumstance Patna High Court CR. APP (SJ) No.295 of 2004 dt.08-10-2025 30/33 appearing in the evidence against the accused specifically, distinctively and separately. The material circumstance means the circumstance or the material on the basis of which the prosecution is seeking his conviction. 22.2. The object of examination of the accused under Section 313 is to enable the accused to explain any circumstance appearing against him in the evidence. 22.3. The Court must ordinarily eschew material circumstances not put to the accused from consideration while dealing with the case of the particular accused. 22.4. The failure to put material circumstances to the accused amounts to a serious irregularity. It will vitiate the trial if it is shown to have prejudiced the accused. 22.5. If any irregularity in putting the material circumstance to the accused does not result in failure of justice, it becomes a curable defect. However, while deciding whether the defect can be cured, one of the considerations will be the passage of time from the date of the incident. Patna High Court CR. APP (SJ) No.295 of 2004 dt.08-10-2025 31/33 22.6. In case such irregularity is curable, even the appellate court can question the accused on the material circumstance which is not put to him. 22.7. In a given case, the case can be remanded to the trial court from the stage of recording the supplementary statement of the accused concerned under Section 313 CrPC. 22.8. While deciding the question whether prejudice has been caused to the accused because of the omission, the delay in raising the contention is only one of the several factors to be considered. 45. Assuming for a moment that defect or irregularity is curable, the case can be reversed back to the trial court. The incident occurred on 06.11.1994. More than 31 years have passed, considering the long passage of time, it would be wholly unjust and impractical to remit the matter for fresh examination under Section 313 Cr.P.C. 46. This Court is cautious that the power to examine an accused under Section Patna High Court CR. APP (SJ) No.295 of 2004 dt.08-10-2025 32/33 313 carries significant importance and the judicial officer must appreciate purpose and implications. Considering the inconsistencies between the evidence of the witnesses and the fardbeyan, it is appropriate to take a lenient view by modifying the sentence of rigorous imprisonment into a sentence of fine. 47. In view of the above discussion, the conviction against the appellant Nos. 2 and 3 i.e. Bhuar Yadav and Kamta Yadav for the offence punishable under Section 323 of IPC and conviction and sentence dated 23.02.2024 is modified as follows:- The sentence of undergoing rigorous imprisonment for six months imposed on the appellants is modified by the way of fine of Rs. 500/- (Rupees five hundred only) each, instead of rigorous imprisonment. The order shall be communicated to the Learned trial Court for necessary execution. 48. The record reveals that the Patna High Court CR. APP (SJ) No.295 of 2004 dt.08-10-2025 33/33 appellants were released on bail on 20.05.2024, hence, the bails bonds of the appellants shall stand cancelled, after the execution of the modified sentence. The trial Court is directed to ensure recovery of fine amount from the concerned appellants. 49. In view of the above, the Criminal Appeal (SJ) is partly allowed by way of modification. Manish/- (G. Anupama Chakravarthy, J) AFR/NAFR NAFR CAV DATE N/A Uploading Date 13.11.2025 Transmission Date