IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (SJ) No.366 of 2014 Arising Out of PS. Case No.-228 Year-2005 Thana- SURYAGARHA District- Lakhisarai ====================================================== Kanhaiya Yadav, Son of Damodar Yadav, Resident of village- Khemtarni, Asthan, P.S.- Surajgarha, District- Lakhisarai ... ... Appellant/s Versus The State of Bihar ... ... Respondent/s ====================================================== Appearance : For the Appellant : Mr. Sanjeev Kumar, Adv. Mr. Ritesh Kumar Narain Singh, Adv. For the State : Mr. Bipin Kumar, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE SHAILENDRA SINGH ORAL JUDGMENT Date : 04-02-2026 The instant appeal has been preferred by the appellant, Kanhaiya Yadav, against the judgment of conviction dated 05.07.2014 and the order of sentence dated 09.07.2014 passed by the court of the learned Ad hoc Additional District & Sessions Judge-V, Lakhisarai, in Sessions Trial No. 27A of 2006, whereby and whereunder the appellant has been convicted for the offences punishable under Section 323 of the Indian Penal Code (in short, “IPC”) and Section 27 of the Arms Act. The appellant has been sentenced to undergo simple imprisonment for one year for the offence punishable under Section 323 of the IPC and to undergo imprisonment for three years with a fine of Rs. 500/- for the offence punishable under Patna High Court CR. APP (SJ) No.366 of 2014 dt.04-02-2026 2/15 Section 27 of the Arms Act. In default of payment of fine, he has been directed to undergo one month’s imprisonment additionally. Both the sentences of imprisonment have been directed to run concurrently by the trial court. Prosecution Story: 2. The substance of the prosecution story, as appearing from the FIR, is as follows: As per the informant, on 14.08.2005, in the evening at about 4:00 PM, he and his brother, Bale Yadav, were sitting and interacting with each other at the door of their house. At that time, their villagers, namely Kanhaiya Yadav (the appellant) and co-accused Sahendra Yadav, came there and started abusing him and his brother, Bale Yadav. In the course of abusing, they took out a pistol and started firing. In the said firing, his brother Bale Yadav sustained injuries on account of splinters scratching his body, touching his right hand and going towards his shoulder, resulting in his falling down on the ground. As per the informant, after the firing, he started screaming and tried to run away, but the appellant, Kanhaiya Yadav, chased him and fired at him as well. Thereafter, upon hearing the commotion and hulla, several villagers gathered, chased both the accused, and managed to catch hold of them after Patna High Court CR. APP (SJ) No.366 of 2014 dt.04-02-2026 3/15 surrounding them. From the hand of the appellant, one country- made pistol was recovered, and from the pocket of his pant, one unused bullet and one shell of a used bullet were recovered after he was apprehended. From the apprehended co-accused, Sahendra Yadav, two bullets were recovered from the pocket of his shirt. As per the informant, after apprehending both the accused, when the villagers were about to proceed to the police station, the police arrived at the place of occurrence in a jeep. Thereafter, both the accused were handed over to the police along with the recovered firearms and a charger, which was also recovered from the accused. As per the informant, his brother, Bale Yadav, was taken to the hospital by the villagers for medical treatment. During the course of apprehending the accused persons, the villagers assaulted them, owing to which they sustained injuries. 3. In the FIR, the informant alleged that the appellant and his companion, Sahendra Yadav, fired at him and his brother with the intention to kill them, but somehow they succeeded in saving their lives by sheer luck. The reason behind the occurrence was a monetary transaction between the appellant and one Pankaj Yadav, son of Bale Yadav, which had Patna High Court CR. APP (SJ) No.366 of 2014 dt.04-02-2026 4/15 taken place prior to the alleged occurrence. Owing to a dispute arising out of the said money transaction, the accused had earlier attacked Pankaj Yadav. 4. The informant, Uma Shanker Yadav (PW-4), recorded his fardbeyan before the Sub-Inspector of Surajgarha Police Station on the same day of the alleged occurrence at about 17:30 hours near the house of one Dewan Yadav in his village, describing the above-mentioned prosecution story. On the basis thereof, the formal FIR bearing Surajgarha P.S. Case No. 228 of 2005 was registered for the offences under Sections 341, 504, and 307 read with Section 34 of the IPC, as well as under Sections 25(1B)(a), 26, and 27 of the Arms Act, which set the criminal law in motion, and the investigation was taken up by the Investigating Officer. 5. It is important to mention here that at the time of recording the fardbeyan (Ext-1) of the informant, a production- cum-seizure memo was also prepared, which forms part of the fardbeyan. After completion of the investigation, the appellant and co-accused Sahendra Yadav were charge-sheeted for the same offences as mentioned in the FIR. After taking cognizance of the alleged offences, the learned Magistrate, finding the case to be triable by the Court of Sessions, committed the same to the Patna High Court CR. APP (SJ) No.366 of 2014 dt.04-02-2026 5/15 Sessions Court for trial. 6. The appellant and co-accused Sahendra Yadav were charged for the offences under Sections 341, 504, and 307 read with Section 34 of the IPC, and also for the offences under Sections 25(1B)(a), 26, and 27 of the Arms Act. The charges were read over and explained in Hindi to the appellant and co- accused Sahendra Yadav, to which they pleaded not guilty and claimed to be tried. It is important to mention that after the framing of charges, the trial of the co-accused Sahendra Yadav was separated and the appellant, Kanhaiya Yadav, faced trial alone. 7. During the trial, the prosecution examined altogether seven witnesses, who are as under : PW-1 Bale Yadav An injured PW-2 Chandan Kumar Brother of the informant and claimed himself to be an eyewitness of the occurrence PW-3 Bahadur Yadav Brother of the informant and claimed himself to be an eyewitness of the occurrence PW-4 Uma Shanker Yadav The informant PW-5 Pankaj Kumar Son of the injured Bale Yadav PW-6 Arvind Kumar Singh The investigating Officer PW-7 Dr. Janardan Prasad The medical expert who examined the injured Bale Yadav and the accused. 8. In documentary evidence, the prosecution proved and exhibited the following documents, which are as under :- Patna High Court CR. APP (SJ) No.366 of 2014 dt.04-02-2026 6/15 Ext-1 Fardbeyan of the informant Ext-1/1 Production-cum-Seizure list Ext-2 The signature of Pankaj Kumar (PW-5) on the seizure list Ext-3 The injury report of Bale Yadav Ext-3/A The injury report of the appellant Kanhaiya Yadav Ext-3/B The injury report of co-accused Sahendra Yadav 9. After completion of the prosecution evidence, the statement of the appellant was recorded, giving him an opportunity to explain all the material circumstances appearing against him from the prosecution evidence, which were denied by him. While recording his statement, the appellant claimed himself to be innocent; however, he did not take any specific defence in his statement. 10. In defence, the appellant produced and exhibited the certified copy of the judgment pertaining to the trial of co- accused Sahendra Yadav, in Sessions Case No. 27 of 2006, which resulted in his acquittal. Submissions made by the appellant’s counsel: 11. Mr. Sanjeev Kumar, learned counsel appearing for the appellant, has argued that on the same set of evidence, the co-accused, Sahendra Yadav, whose case was separated from that of the appellant after framing of charge and who faced trial separately, was acquitted by the trial court presided over by a different Judicial Officer; however, on the same set of evidence, Patna High Court CR. APP (SJ) No.366 of 2014 dt.04-02-2026 7/15 the appellant was convicted. The allegation regarding causing firearm injury to Bale Yadav, brother of the informant, does not get corroboration from his injury report, as the injury, which was found to be simple in nature, was opined by the medical expert (PW-7) as having been caused by a hard and blunt substance. On his body, multiple rashes were found by the medical expert, but it was not opined by the doctor that the same were the result of scratching or splintering of a bullet. 11.1. From the prosecution evidence, it is evident that there was enmity between the prosecution party and the appellant, who are agnates, and the same was the main reason for falsely implicating the appellant in the alleged occurrence. Learned counsel further submits that, as per the prosecution case, the appellant and co-accused Sahendra Yadav were apprehended by villagers of the prosecution party, and from their possession, one country-made pistol along with used and unused bullets were recovered; however, to prove this fact, none of the said villagers were produced and examined by the prosecution, and for their non-production, there is no convincing explanation. 11.2. There are serious contradictions among the testimonies of the prosecution witnesses, particularly with Patna High Court CR. APP (SJ) No.366 of 2014 dt.04-02-2026 8/15 regard to the consequences of the alleged firearm injury said to have been caused to Bale Yadav, as one witness stated that there was no bleeding from the body of Bale Yadav, whereas another stated that there was bleeding from the wounds. 11.3. The alleged firearms, namely the country-made pistol and the used and unused bullets, were not recovered by the police; rather, as per the prosecution case, the same were produced by private persons having an interest in the prosecution party. However, according to the informant, several villagers were present at the time of recovery of the said weapons, but none of them was produced and examined to substantiate the alleged recovery. 11.4. Lastly, it is submitted that for attracting the offence under Section 27 of the Arms Act, the prosecution failed to prove that the recovered country-made pistol was in working condition, as there was no opinion of a ballistic expert in this regard, and further, the seized firearms were not produced before the trial court. Submissions made on behalf of the State: 12. On the other hand, Mr. Bipin Kumar, learned Additional Public Prosecutor (APP) appearing for the State, submits that it is an admitted position that there was enmity Patna High Court CR. APP (SJ) No.366 of 2014 dt.04-02-2026 9/15 between the prosecution party and the appellant, and the same was the motive for the appellant and co-accused Sahendra Yadav to make a murderous attempt on the informant and his brother. Though the seized firearms were not produced before the trial court, the seizure thereof was duly proved by the prosecution witnesses. Learned APP further submits that the multiple rashes found on the body of Bale Yadav might be the result of firing by use of a country-made pistol, as per the prosecution story, wherein only splinters passed by scratching the body of the informant’s brother. 12.1. The FIR, in the form of the fardbeyan of the informant, was registered immediately, and the appellant, who had been caught hold of by the villagers and the prosecution party, was also handed over to the police immediately. The appellant’s injury report, which was proved by PW-7, also supports the prosecution story, as according to the informant, the appellant and co-accused Sahendra Yadav sustained injuries on account of assault committed by the villagers during the course of apprehending them. Consideration and Analysis: 13. I have heard both sides, perused the impugned judgment and the evidence adduced by both sides available on Patna High Court CR. APP (SJ) No.366 of 2014 dt.04-02-2026 10/15 the record of the trial court, and also taken into account the statement of the appellant. In the instant matter, in view of the prosecution evidence, particularly the evidence of PW-5, the son of the injured, it is an admitted position that there existed inimical relations between the appellant and the prosecution party. It is settled law that enmity is a double-edged weapon, which can be used both to falsely implicate a person and to take revenge. Where enmity is an admitted fact between the prosecution party and the accused, the prosecution evidence is required to be scrutinized with great care. 13.1. As per the prosecution case, at the time of the alleged occurrence, the informant and his brother, Bale Yadav, were sitting and talking to each other at the gate of their house. In the meantime, the appellant and co-accused Sahendra Yadav came there, started abusing them, and thereafter opened fire, causing firearm injury to the informant’s brother, Bale Yadav, resulting in his falling on the ground. Thereafter, the appellant opened fire at the informant when he tried to run away in order to save himself. It was further revealed by the informant that upon hearing the cries and commotion, the villagers gathered, chased the appellant and co-accused Sahendra Yadav, managed to catch hold of them, and recovered firearms from their Patna High Court CR. APP (SJ) No.366 of 2014 dt.04-02-2026 11/15 persons. 13.2. Regarding these incidents, the evidence of Bale Yadav (PW-1) and Uma Shanker Yadav (informant/PW-4) is most important. Bale Yadav (PW-1), in his examination-in- chief, deposed that the appellant fired at him and that the bullet splinters hit his hand. Thereafter, the appellant fired at his brother, but the bullet of second round of firing got trapped in the barrel of the pistol, resulting in no firing towards the informant. 13.3. The informant (PW-4), in his examination-in- chief, deposed that the accused fired at him when he was trying to run away. According to him, the appellant again fired at him, but the shot did not hit him. 14. Now, I come to the evidence of the medical expert (PW-7), who examined Bale Yadav, found the injuries, and gave the following opinion: (i) “Multiple rashes on the whole interior part of the right upper extremity.” Though an injury in the nature of rashes is possible from a gunshot, but at the same time, when splinters hit a part of the human body, there must be some cutaneous reactions, including Patna High Court CR. APP (SJ) No.366 of 2014 dt.04-02-2026 12/15 rashes, dermatitis, and localized inflammation, particularly when such type of injury results in bleeding. However, in this regard, there is no specific medical opinion. Further, the medical expert did not examine the injured to ascertain whether other relevant materials, such as the injured clothes containing gunpowder residue, specifically potassium nitrate or other components, were present or not. As such, the opinion of the medical expert is not fully corroborative to the allegation of the informant, particularly regarding the injuries of PW-1 being the result of scratches caused by splinters of a firearm. 15. In this matter, the prosecution failed to produce the alleged country-made pistol, which was allegedly used by the appellant while firing at the informant and his brother, despite the same being in the custody of the police. Further, the Investigating Officer did not make any attempt to get the seized firearm (country-made pistol) examined by a ballistic expert to determine whether the same was in working or usable condition. For attracting the offence under Section 27 of the Arms Act, the prosecution is bound to prove that the alleged firearm used by the accused was in a condition capable of firing. In the present matter, although the appellant has been convicted under Section 27 of the Arms Act, but the prosecution failed to prove that the Patna High Court CR. APP (SJ) No.366 of 2014 dt.04-02-2026 13/15 alleged firearm (country-made pistol) was in working condition by adducing the opinion of a ballistic expert. 16. It is also important to mention the evidence of the Investigating Officer (PW-6). He deposed in his examination-in-chief that the bullet shell and bullet were produced by the informant before him at the place of occurrence. The seizure memo attached to the fardbeyan also shows that the alleged firearms were not recovered by the police; rather, the same were produced by the prosecution party, and such production is considered weak evidence to prove recovery of the alleged firearms. In the present matter, as per the Investigating Officer, only the used shell and the unused bullet were produced by the informant, and he stated nothing about the production of a country-made pistol by the informant. 17. In order to prove recovery of the alleged firearm from the possession of the appellant and co-accused Sahendra Yadav, the evidence of independent villagers would have been material; however, none of them was produced and examined by the prosecution. As far as the contradictions among the testimonies of the prosecution witnesses, as pointed out by the appellant’s counsel, are concerned, I find certain material contradictions. PW-1 deposed in his cross-examination that the Patna High Court CR. APP (SJ) No.366 of 2014 dt.04-02-2026 14/15 accused did not fire at his brother (the informant), whereas as per the fardbeyan of the informant and his testimony, the appellant fired at him. PW-2, the brother of the informant, deposed in paragraph No. 10 of his cross-examination that there was bleeding from the chest and stomach of Bale Yadav and that some drops of blood also fell on the ground. This statement does not get corroboration from the injury report of Bale Yadav. PW- 3 stated in the paragraph No. 13 of his cross-examination that although Bale Yadav sustained injury, there was no bleeding. The Investigating Officer (PW-6), who arrived at the place of occurrence, did not state in his evidence that he found any blood spots, stains, or any signs of firing at the alleged place of occurrence. Conclusion :- 18. In view of the aforesaid facts and circumstances emerging from the prosecution evidence, I reach to this conclusion that the prosecution remained fail to prove the alleged offences, for which the appellant was convicted, beyond reasonable doubt before the trial court. This Court is not persuaded to affirm the judgment of the trial court convicting the appellant for the offences under Section 323 of the IPC and Section 27 of the Arms Act. Accordingly, the impugned Patna High Court CR. APP (SJ) No.366 of 2014 dt.04-02-2026 15/15 judgment of conviction and order of sentence are hereby set aside, and the instant appeal stands allowed. 19. The appellant is on bail. Accordingly, he and his sureties are discharged from the liabilities arising out of their respective bail bonds. 20. Let the records of the trial court, along with a copy of this judgment, be transmitted forthwith to the trial court for necessary compliance. annu/- (Shailendra Singh, J) AFR/NAFR AFR CAV DATE NA Uploading Date 05.02.2026 Transmission Date 05.02.2026