VIJAY KUMAR RAI and ANR vs STATE OF BIHAR
- Court
- Patna High Court
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.132 of 1996
CNR No. BRHC010354401996
======================================================
1. Vijai Kumar Rai @ Vijay Kumar,
2. Prabhu Narain Rai,
Both son of Late Satya Narain Rai, resident of village Bhawnathpur, Police
Station Akbarnagar, District Bhagalpur, at present residing at Mohalla New
Punaichak, Police Station S. K. Puri, District Patna.
... ... Appellant/s
Versus
THE STATE OF BIHAR
... ... Respondent/s
=======================================================
Arising out of the judgment of conviction, dated 26.03.1996, and the order of
th
sentence, dated 27.03.1996, passed, by Sri J. P. Paul, 5 Additional Sessions
Judge, Patna, in Sessions Trial No. 208 of 1986/08 of 1994, arising out of Sri
Krishnapuri Police Station Case No. 96 of 1990, dated 25.02.1980.
=======================================================
Appearance :
For the Appellant/s : Mr. Ajay Kumar Thakur
Mr. Rajesh Kumar
Mr. Priyanshu Ranjan
Mr. R. Pranshu Singh
For the Respondent/s : Mr. Sujit Kumar Singh
======================================================
CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA
and
HONOURABLE MR. JUSTICE VIKASH KUMAR
JUDGMENT AND ORDER
C.A.V.
(Per: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA)
Date : 30-10-2026
The present appeal has been preferred against the
judgment of conviction, dated 26.03.1996, and the order of
sentence, dated 27.03.1996, passed by the learned Additional
Sessions Judge–V, Patna, in Sessions Trial No. 208 of 1986/08 of
1994, arising out of Kotwali Police Station Case No. 96 of 1980
(sic., Sri Krishna Puri P.S. Case No. 96 of 1990, in the judgment),
Patna High Court CR. APP (DB) No.132 of 1996 dt.30-10-2026
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whereby the appellant no. 1, namely, Vijay Kumar Rai, was
convicted for the offence punishable under Section 302 of the
Indian Penal Code; whereas the appellant no. 2, namely, Prabhu
Narayan Rai, was convicted for the offences punishable under
Section 302 read with Section 34 of the Indian Penal Code.
Pursuant to their conviction, the appellants were sentenced to
undergo rigorous imprisonment for life and to pay a fine of
₹ 5,000/- each, and in default of payment of fine, to undergo
rigorous imprisonment for one year. The amount of fine, so
realized, was directed to be paid to Nirmala Devi, widow of the
deceased.
2. The prosecution case, as unfolded by the informant,
Gokul Yuvraj Lal, recorded by the police officials of Sri
Krishnapuri Police Station, on 25.02.1980, at about 11 AM, is that
Shailendra Kumar Pandey, along with his two brothers, namely,
Dharmendra Pandey and Buchi, was occupying the lower portion
of the house as a tenant; whereas Rai Ji and Vijay were tenants in
the upper portion of the house. It is alleged that at about 7:30 AM
on the same date, the informant's mother was sweeping the
verandah of the house when Shailendra Kumar Pandey came out
of his room and objected to the sweeping, stating that the dust was
flying, upon which the informant's mother said that she was
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sweeping slowly and he should not have objected to it. Thereupon,
Shailendra Kumar Pandey started abusing her. On hearing the
abuses, the informant and his father went there and asked him not
to abuse her. In the meanwhile, Dharmendra Pandey came
downstairs carrying a mosquito-net rod, while Vijay and his elder
brother, Rai Ji, also came downstairs armed with rods, sticks and
other articles, and Dharmendra Pandey assaulted the informant's
father with a stick two or three times, Rai Ji (Prabhu Narayan Rai)
also assaulted him with an iron rod, as a result of which
informant’s father sustained injuries on his head, ribs and back. On
seeing his father being assaulted, the informant intervened and
attempted to take him away from the place of occurrence, but he
was assaulted on his hand with a stick, as a result of which he
sustained bleeding injury in his finger. Thereafter, his sister,
Nirmala Devi, came in their rescue, but she was also assaulted
with a stick, causing bleeding injury to her palm.
3. It is further alleged that on hearing the commotion,
the informant's brother-in-law (jija), Purushottam Prasad, came to
the place of occurrence and attempted to take his wife away from
there, Vijay, who was armed with a mosquito-net rod, struck him
forcefully on the head, as a result of which, Purushottam Prasad
sustained injury on his head and became unconscious. Thereafter,
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the informant and his family members started crying. Upon
hearing the noise, several persons from the neighbourhood arrived
at the place of occurrence and saw the accused persons carrying
sticks and rods. On seeing the people, the accused persons
allegedly threw away the sticks and rods and fled away from the
place of occurrence. The accused persons occupying the lower
portion of the house closed their rooms and fled, whereas Rai Ji,
who was residing in the upper portion, left his room open and fled
from the place. The informant further stated that, as all the
members of his family had sustained injuries and the condition of
his brother-in-law had become serious, they did not immediately
proceed to the police station and instead went to big hospital.
There, the doctor administered blood and fluids to his brother-in-
law on account of which the informant and his family members
were delayed at the hospital. At that time, his brother-in-law was
still unconscious. The informant thereafter left one person at the
hospital to attend to him and returned to his residence, where he
found the police. He then narrated the entire occurrence to the
police. The informant further stated that he had brought with him a
towel and vest belonging to his brother-in-law from the hospital.
4. The reason behind the occurrence is that the tenants
were residing without their families and their conduct and
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character were not good and his family members had, on several
occasions, objected their conduct.
5. On the basis of the aforesaid fardbayan, Kotwali
Police Station Case No. 96 of 1980, dated 25.02.1980, was
registered against the appellants, along with co-accused persons,
for the offences punishable under Sections 341, 323, 325 and 34 of
the Indian Penal Code. Upon registration of the case, the police
proceeded with the investigation.
6. It is pertinent to mention that the informant's brother-
in-law, Purushottam Prasad, succumbed to his injuries at about 6
PM on the same day, i.e., on 25.02.1980, while undergoing
treatment at the hospital. Thereafter, an inquest report was
prepared and his dead body was sent for post-mortem examination.
7. Upon completion of the investigation, the police
submitted Charge-Sheet/Final Form No. 11, dated 08.06.1980,
against the appellants and other co-accused persons for the
offences punishable under Sections 341/323/325/302/34 of the
Indian Penal Code. The learned Chief Judicial Magistrate, Patna,
took cognizance of the offences against the appellants and co-
accused persons and subsequently, the case was committed to the
Court of Sessions for trial on 17.03.1986.
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8. On 31.08.1988, the learned Additional Sessions
Judge-X, Patna, framed charges against the appellant Vijay Kumar
Rai under Section 302 of the Indian Penal Code and against the
appellant Prabhu Narayan and the co-accused persons under
Section 302 read with Section 34 of the Indian Penal Code. The
charges were read over and explained to the them in Hindi, to
which they pleaded not guilty and claimed to be tried.
9. The prosecution, in order to substantiate its case, has
examined as many as nine witnesses and exhibited some
documents on its behalf. List of prosecution witnesses and exhibits
are being mentioned herein under in tabular form:
List of Prosecution Witnesses :
P.W. Name of witness Description
1. Jhalia Devi Mother of the Informant
2. Saryug Lal Father of the Informant
3. Gokul Yuvraj
Informant
Kumar Lal
4. Nirmala Devi Sister of the Informant
5. Dr. Ibha Hazari Doctor who treated PW3 and
PW4
6. Girja Prasad Singh Formal Witness
7. Ram Nandan
Tenant of the house, declared
Prasad Singh
hostile
8. Baiju Lal Formal witness
9. Dr. Om Prakash Doctor who treated the deceased
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List of Exhibits on behalf of the prosecution :
Exhibit
Description of the Exhibit Date/proved by
No.
1 Signature of Informant on
28.01.1989/PW 3
Fardbayan
2 Injury report of Informant 18.02.1989/PW 5
2/1 Injury report of Nirmala Devi 18.02.1989/PW 5
3 Letter written and signed by
18.02.1989/PW 6
SHO Dinesh Prasad
4 Challan 23.02.1989/PW 6
5 Entry in Malkhana Register
23.02.1989/PW 6
by ASI Sri S. D. Ram
6 Writing of Fardbeyan and
02.08.1989/PW 8
signature of ASI, Sri
krishnapuri Police Station
7 Formal FIR 02.08.1989/PW 8
2/2 Injury report of Purushottam
09.07.1991/PW 9
Prasad (deceased)
8 Bed-Head Ticket 09.07.1991/PW 9
10. After closure of the prosecution evidence, the
statement of the appellants were recorded under Section 313 of the
Code of Criminal Procedure, 1973 on 07.05.1990, in which the
appellants denied all incriminating circumstances appearing
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against them in the prosecution evidence and stated that they have
been falsely implicated in the present case.
11. Mr. Ajay Kumar Thakur, learned Counsel for the
appellants, argued that the judgment of conviction is against the
weight of evidence and has been rendered on mere presumption of
guilt. It is contended that the prosecution has failed to prove its
case beyond reasonable doubt inasmuch as the testimonies of the
prosecution witnesses suffer from material contradictions and
inconsistencies inasmuch as the learned Trial Court failed to
properly appreciate the evidence available on record and recorded
the conviction without considering the material circumstances
emerging from the prosecution evidence itself.
12. Learned counsel further submits that the prosecution
has failed to establish the place and manner of the alleged
occurrence. The material witnesses have not a consistent and
reliable account regarding the manner in which the occurrence
took place.
13. The Investigating Officer has not been examined,
thereby depriving the appellant of an effective opportunity to
confront the prosecution witnesses with their previous statements
and material contradictions. Due to the non-examination of the
Investigating Officer, the inquest report could not not be proved.
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The place of occurrence has also not been proved by the
Investigating Officer. As such, the non-examnation of the
Investigating Officer has prejudiced the case of the appellants.
14. Further, the doctor, who conducted the post-mortem
examination of the deceased Puruhottam Prasad, has also not been
examined, due to which the post-mortem report could not be
proved. In the absence of proof of reliable medical evidence, the
prosecution has failed to establish the nature and cause of death
and whether the injuries were caused in the manner alleged.
15. It is also significant that the prosecution has failed to
establish any reliable evidence showing that the appellants
assaulted the deceased with a sharp-edged weapon. The
prosecution has also failed to examine the doctor who conducted
the post mortem on the dead body of the deceased.
16. These circumstances were material and required
proper consideration by the learned Trial Court, but these aspects
have been completely overlooked while recording the conviction.
17. It is further submitted that the very same set of
prosecution evidence was relied upon against the other co-accused,
who were acquitted. The learned Trial Court was therefore
required to carefully examine whether the same set of evidence
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could, without any legally sustainable distinction, constitute proof
beyond reasonable doubt against the present appellants.
18. Lastly, it is respectfully submitted that the failure of
the prosecution to establish the genesis, nature and manner of
occurrence strikes at the very root of its case. When the
foundational story of the prosecution itself is doubtful, the
subsequent attribution of the alleged overt act to the appellant
cannot safely be relied upon for recording a conviction.
19. The cumulative effect of the non-examination of the
Investigating Officer and the doctor, who conducted the post-
mortem examination, non-proof of the post-mortem and the
inquest reports, absence of reliable medical evidence connecting
the weapon used by the appellants, material contradictions in the
prosecution evidence and acquittal of the co-accused persons
creates a clear and substantial doubt over the tetimonies of the
prosecution witnesses. The appellants are therefore entitled to be
accorded at least benefit of doubt and the impugned conviction and
sentence deserve to be set aside.
20. In support of his submissions, learned Counsel for
the appellants has placed reliance on the following decisions of the
Hon’ble Supreme Court:-
Patna High Court CR. APP (DB) No.132 of 1996 dt.30-10-2026
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(i) Munna Lal v. State of Uttar Pradesh , reported in
(2023) 18 SCC 661 ;
(ii) State of Haryana v. Ram Singh , reported in (2002)
2 SCC 426 ;
(iii) Niranjan v. State of West Bengal , reported in
(2010) 6 SCC 525 ;
(iv) Bir Singh v. State of UP , reported in (1977) 4 SCC
420 ;
(v) Jaikam Khan v. State of UP , reported in (2021) 13
SCC 716 ;
(vi) Kanhai Mishr vs. State of Bihar (AIR 2001 SC
1113) ;
(vii) Nala Bothu v. State of AP , reported in (2014) 12
SCC 261 ;
(viii) Anand Chogule vs Sidarai Chogule , reported in
(2019) 8 SCC 50 ;
(ix) Parshuram v. State of MP , reported in (2024) 12
SCC 322 ;
(x) Syed Ibrahim v. State of AP , reported in (2006) 10
SCC 601 .
21. Per contra, learned Additional Public Prosecutor
submitted that the judgement of conviction and the order of
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sentence under challenge require no interference as the prosecution
has been able to prove the case beyond all reasonable doubts. It
has been submitted that the prosecution witnesses have remained
consistent during the course of trial and there does not remain any
lacuna in the case of the prosecution. The minor inconsistencies in
the testimony of the witnesses cannot be a ground to reject their
evidence as a whole.
22. It is further submitted that the testimony of the
witnesses stands corroborated in material particulars by the
prosecution evidence and the offences alleged against the
appellants appears to be serious in nature inasmuch as the
prosecution witnesses examined have duly supported its case.
23. Learned Additional Public Prosecutor finally argued
that guilt of the appellants has been satisfactorily proved by the
evidence adduced during the trial and there is no infirmity in the
judgement of conviction passed by the learned trial Court.
24. I have heard learned Counsel for the parties and have
perused the materials available on record.
25. It would be apposite to discuss the oral/documentary
evidence as available on record to re-appreciate the evidence for
just and proper decision of the present appeal.
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26. Out of the nine prosecution witnesses, PW 1 is the
mother of the informant, PW 2 is the father of the informant, PW 3
is the informant of this case and one of the injured also, PW 4 is
the sister of the informant and one of the injured, PW 5 is the
doctor, who examined the informant and his sister, PW 6 and PW 8
are the formal witnesses, PW 7 is one of the tenant of the house,
but was declared hostile by the prosecution and PW 9 is the doctor,
who treted the decesed when he weas admitted in the hospital.
27. PW 6, Girja Prasad Singh, in his examination-in-
chief, has deposed that the prosecution officer has demanded the
seizure list and material exhibit in connection with Sri Krishnapuri
Police Station Case No. 96 of 1980, but on inquiry, he found that
the seizure list and the material exhibit were not available in the
police station. According to the material exhibit challan, the same
had been sent to the Court Malkhana on 05.02.1982. He produced
a letter in the handwriting of the then Officer-in-Charge, Dinesh
Prasad Singh, which bears his signature also.
28. In the cross-examination, this witness (PW 6) has
deposed that when material exhibits are kept in the police
Malkhana, their entry is made in the Malkhana Register. He further
deposed that he could not say whether the material exhibits
mentioned in the challan were in packets or were kept open.
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29. PW 8, Baijulal, in his examination-in-chief stated
that the fardbeyan was in the handwriting of the Sub-Inspector of
S.K. Puri, and bore his signature also. He deposed that he was
acquainted with the handwriting and signature of Sri Puri and he
identified the same. He further stated that the formal First
Information Report was in the handwriting of the Officer-in-
Charge of Kotwali Police Station and he identified his signature
and handwriting .
30. In his cross-examination, PW 8 has deposed that the
First Informawtion Report had not been written before him.
31. PW 7, Ramnandan Prasad Sinha, is one of the tenant
of the house and is a seizure list witness. He, in his examination-
in-chief, has deposed that at about 12 noon, certain articles were
seized by the police in his presence and he put his signature on the
seizure list. He stated that he had not seen any dead body. He
denied having stated before the police that, on coming into the
courtyard on hearing the commotion, he had seen the assault
taking place and that Dharmendra, with the assistance of his
brother Sailendra, was assaulting Saryug Lal, Jhalia, Gokul and
Nirmala with a mosquito-net stick holding in his hand, and that
when the wife of Purshottam Prasad came there in the meantime,
she was also assaulted by them. He further denied having stated
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before the police that Prabhunarayan, Vijay and Sushil had also
come from upstairs and joined in the assault. He also denied
having stated before the police that when Purshottam Prasad was
trying to take his wife away from the quarrel, Vijay struck him on
the head with a mosquito-net stick. He denied that he had
concealed the true facts in collusion with the accused and had
given a false statement.
32. This witness was declared hostile at the instance of
the prosecution.
33. PW 5, Dr. Ibha Hazari, is the doctor and at the
relevant time, she was posted as Medical Officer-in-Charge of the
New Gardiner Road Dispensary and this witness had exmined
injured Gokul Lal, son of Saryug Lal, on 25.02.1980, and found
one lacerated wound measuring ½" × ⅛" on the right index finger,
caused by hard and blunt substance, possibly by a mosquito curtain
stick, and the injury was simple in nature.
34. This witness (PW 5) had also examined Nirmala
Devi, wife of Purshottam Prasad, and found one bruise with a
scratch measuring about ⅛" in length between the little finger of
her right hand, caused by hard and blunt substance, possibly a
mosquito-net stick, and the injury was simple in nature.
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35. In cross-examination, this witness (PW 5) has
deposed that the injuries are superficial and might have been
manufactured.
36. PW 9, Dr. Om Prakash, at the relevant time, was
posted in the Emergency of the PMCH and on 25.08.1980, he
examined Purshottam Prasad, son of Saryo Prasad, vide P.R.S. No.
1015, and found the following injuries:
(i) an incised wound on the scalp measuring 4" × 1" x
bone deep;
(ii) an incised wound on the left wrist measuring 1¼" ×
¼" x skin deep.
37. This witness has deposed that the first injury was
grievous in nature, whereas the second one was simple in nature,
and both injuries have been caused by a sharp cutting weapon.
38. In the cross-examination on behalf of accused-
appellants Prabhunarayan and Vijay Kumar, this witness (PW 9)
deposed that an iron rod was a hard and blunt substance and the
injuries found on the body of the injured were not caused by an
iron rod.
39. From the evidence of the doctor (PW 9), it is crystal
clear that the decesed sustained injurie by a sharp cutting weapon
and not by hard and blunt substance like rod.
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40. Keeping in vew the above finding of the treating
doctor, I would now deal with the eye-witnesses to the occurrence,
who are closely related to each other.
41. PW 1, Jhalia Devi, is the mother of the informant.
She, in her examination-in-chief, has deposed that about eight
years ago, at about 6:00 to 7:00 A.M. while she was sweeping the
courtyard of her house, Shailendra Kumar Pandey, her tenant, was
washing his face, and told her that dirt had fallen upon him and
started abusing her. Shailendra Kumar Pandey called his brothers,
Dharmendra Pandey and Buchi Pandey, who came there with
mosquito-net sticks, and Shailendra Kumar Pandey exhorted them
to assault. Thereafter, Buchchi and Dharmendra assaulted her with
mosquito-net sticks, whereupon she raised alarm for help. She
further deposed that on hearing her alarm, her husband, Saryug Lal
(PW 2), her son Gokhul @ Raj Kumar (PW 3) and her daughter,
Nirmala Devi (PW 4) came to rescue her, but Shailendra,
Dharmendra and Buchi assaulted her husband, son and daughter.
In the meantime, Prabhu Narayan and Vijay Kumar came from the
upper floor; Prabhu narayan was carrying an iron rod and Vijay
Kumar was carrying a mosquito-net stick. Sushil Kumar Singh
also came there carrying a knife. This witness further deposed that
Dharmendra Kumar overturned the burning stove lying in the
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courtyard on the body of her husband and Dharmendra and Buchi
also assaulted her husband and son.
42. This witness (PW 1) further deposed that her son-in-
law, Purshottam Prasad, who was washing his face, outside came
there on hearing the commotion. Prabhu Narayan and Vijay Kumar
assaulted Purshottam Prasad together, Prabhu Narayan with an iron
rod and Vijay Kumar with a mosquito-net stick, as a result of
which Purshottam Prasad sustained injury on his head by iron rod,
upon which Purushottam Prasad fell down at the spot and became
unconscious and there was profuse bleeding. Sushil Kumar Singh,
however, remained standing there with knife. Thereafter, Prabhu
Narayan, Vijay Kumar and Sushil Kumar Singh went to their room
on the second floor,left the room open and fled by jumping over
the wall. Shailendra, Dharmendra and Buchi also locked their
room and fled away. They also left the danda and iron rod there.
This witness along with others took the son-inlaw to the hospital
where her son-in-law died in the PMCH.
43. In the cross-examination, PW 1 deposed that she had
seen Prabhu Narayan assaulting her son-in-law with an iron rod
and Vijay assaulting him with a mosquito-net stick from the front.
PW-1 further stated that she had not seen anyone assaulting her
son-in-law with a sharp-edged weapon and denied the suggestion
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that Prabhu Nnarayan or Vijay had assaulted her son-in-law with
any sharp-edged weapon. This witness (PW 1) denied that she had
given a false statement. She further deposed that there was no
visiting relationship between their families, they used to talk to
each other and there was no quarrel, dispute or previous enmity
between them. PW-1 further deposed that the Investigating Officer
had found three mosquito-net sticks and one iron rod there. PW-1
denied the suggestion that she had not sustained any injury and
stated that she had sustained minor injuries. She further stated that
she had not got herself medically examined by any doctor.
44. PW 2, Saryug Lal, is the father of the Informant. He,
in his examination-in-chief, deposed that on 25.02.1980, at about
6:00 to 6:30 A.M., his wife was sweeping the courtyard.
Shailendra Kumar Pandey objected to her sweeping, stating that
the dust was falling upon him. Thereafter, an altercation and
exchange of abuses took place between them. Shailendra Kumar
Pandey called his two brothers, namely, Dharmendra Kumar
Pandey and Narender Kumar Pandey @ Buchi, and exhorted them
to assault her. Dharmendra and Narender came there carrying
mosquito-net sticks and assaulted this witness. This witness
attempted to stop the blows with his both hands, as a result of
which the skin near the thumbs of both his hands was torn and his
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fingers also sustained injuries. This witness snatched the mosquito-
net stick from Narender and threw it away.
45. This witness (PW 2) further deposed that Narendra
picked up one of the small iron rods kept in the courtyard for
construction of the house, and thereafter Dharmendra and
Narender assaulted him with the same, as a result of which his
head was injured and started bleeding. At that time, his wife raised
an alarm and calling others to rescue. His daughter Nirmala, son-
in-law Purshottam, and the tenants Ramesh Singh and Ramanand
came there. The tenants residing on the upper floor, namely
Prabhunarayan Rai and his younger brother Vijay, also came there,
and all of them reached the courtyard. Some persons persuaded
Shailendra Pandey to leave the house. PW 2 further deposed that
his daughter and son-in-law, Purshottam, took Prabhu Narayan Rai
and Vijay towards the staircase leading to the upper floor. Prabhu
Narayan and Vijay assaulted Purushottam with an iron rod and a
mosquito-net stick respectively. Purshottam sustained an injury on
his head and fell down and became unconscious. Thereafter, the
family members took him to the hospital. By that time, all five
accused persons had fled from the place of occurrence. PW-2 took
his son-in-law to Patna Medical College and Hospital, where
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treatment of both, this witness, and his son-in-law commenced, but
at about 6:00 P.M., his son-in-law, Purshottam, died.
46. In the cross-examination, this witness (PW 2)
deposed that none of the accused had assaulted his son-in-law with
any sharp-edged weapon and he had not seen Prabhu Narayan or
Vijay assaulting his son-in-law with any sharp-edged weapon. He
further stated that he had received treatment at PMCH and denied
the suggestion that the occurrence had not taken place in the
manner disclosed by him, or his son-in-law had not been assaulted
with an iron rod. He also denied that he had given a false
statement. He stated that he could not tell the Court the reason why
Prabhunarayan and Vijay had assaulted his son-in-law. He further
stated that on the night of the occurrence itself, the police recorded
his statement at his residence. He had stated before the police that
Shailendra had called his two brothers, who came with mosquito-
net sticks, and that after he snatched the mosquito-net stick from
Narender, thereafter Narender picked up an iron rod lying in the
courtyard and assaulted him. He had also stated before the police
that thereafter both brothers assaulted him, as a result of which his
head was injured. PW 2 stated that he had shown the iron rod lying
in the courtyard to the daroga ji. There were four or five small iron
rods lying there. The mosquito-net stick which he had snatched
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from Narender had been thrown by him in the courtyard, and he
could not say whether the daroga ji had seized the same. He could
not state how many blows by the rods or sticks had been inflicted
upon him, as he had not counted them. He sustained injuries on
both palms, the region of the thumbs, his head and both ribs. He
had no injury on his legs. Blood had oozed out of his head and had
stained his clothes. He had shown all his injuries to the doctor. His
shirt was also stained with blood, but daroga ji did not take the
shirt into custody. PW 2 further stated that some persons had also
gone to Gardiner Road Hospital, but he did not know who were
they. Seeing the serious condition of his son-in-law, he
accompanied him to Patna Medical College and Hospital.
47. PW 3, the informant himself, in his examination-in-
chief, deposed that the occurrence was of 25.02.1980, at about
6:30 to 7:00 A.M. At that time, he was present in his house. On
hearing the alarm, he came to the courtyard and saw his mother
sweeping the courtyard and Shailendra Kumar Pandey objected to
the sweeping, stating that dust was falling upon him. Thereupon,
Shailendra Kumar Pandey exhorted the others to assault her using
filthy language. Immediately thereafter, Dharmendra Kumar
Pandey, Narender Kumar Pandey, Prabhunarayan Rai, his brother
Vijay Kumar Pandey and their friend Sushil Kumar Pandey came
Patna High Court CR. APP (DB) No.132 of 1996 dt.30-10-2026
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into the courtyard from upstairs. Dharmendra was carrying a
mosquito-net stick, Prabhunarayan was carrying an iron rod, Vijay
Kumar was carrying a mosquito-net stick and Sushil Kumar was
carrying a knife. PW 3 deposed that while they were all in the
courtyard, the accused persons started assaulting them. His father,
Saryug Lal, was assaulted by Dharmendra, Prabhu Narayan and
Vijay Kumar, as a result of which he sustained injuries on his ribs,
head, hands and back. PW 3 himself sustained an injury on his
right hand, but he could not see who had assaulted him. His sister,
Nirmala, also came there and was assaulted, sustaining an injury
on her right hand. On hearing the commotion, his brother-in-law,
Purshottam Prasad, intervened and tried to pacify the accused
persons and took Prabhu Narayan Rai, Vijay Kumar and their
friend Sushil Kumar towards the staircase leading upstairs. When
Purshottam Prasad was coming back downstairs, Prabhu Narayan,
Vijay Kumar and Sushil Kumar were present there, Sushil Kumar
having a knife pointed at Purshottom Prasad waist. Thereafter,
Vijay Kumar and Prabhunarayan assaulted Purshottam Prasad,
Prabhu Narayan with a mosquito-net stick and iron rod
respectively, striking him on his head. As a result, Purshottam
Prasad fell down and became unconscious and profuse bleeding
started from the injury. Thereafter, Prabhunarayan, Vijay Kumar
Patna High Court CR. APP (DB) No.132 of 1996 dt.30-10-2026
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and Sushil Kumar went upstairs to their room. On seeing
Purshottam Prasad lying injured, Shailendra, Dharmendra and
Narender locked their room and went away. Prabhu Narayan, Vijay
Kumar and Sushil Kumar left their room open and fled by jumping
from the adjoining side. PW 3 stated that they took Purshottam
Prasad to PMCH, where he died in the evening. PW 3 further
stated that the police recorded his fardbeyan at his house. After the
same was read over and explained to him, he found it to be correct
and put his signature thereon.
48. In the cross-examination, this witness (PW 3)
deposed that prior to the recording of his fardbeyan, Shailendra
had instituted a criminal case on the same day against him, his
father, his mother and his sister, alleging that they had assaulted
him and thrown his belongings out of the house. He further
deposed that he had not given any statement either at the police
station or at the hospital. Though he had gone to the hospital, he
had not gone to the police station and had returned from the
hospital while his brother-in-law was still undergoing treatment.
He himself had sustained some injuries, but neither had he shown
his injuries nor received treatment at the PMCH; rather, he had
been treated at Gardiner Road Hospital. PW 3 further stated that he
had not seen his brother-in-law being assaulted with any sharp-
Patna High Court CR. APP (DB) No.132 of 1996 dt.30-10-2026
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edged weapon and had not seen any sharp-edged weapon in the
hands of Prabhu Narayan or Vijay. PW 3 denied the suggestion
that the occurrence had not taken place in the manner stated by
him or that, out of fear of one tenant, he had falsely implicated
another tenant. PW 3 further stated that before the arrival of the
police, he had discussed the occurrence with his sister and others.
At that time, about ten to fifteen persons were present there, out of
whom four were eyewitnesses. One of them, Ramanandan Singh,
had arrived in the middle of the occurrence,
49. PW 4, Nirmala Devi is the sister of the informant
and one of the injured also. She, in her examination-in-chief, stated
that the occurrence was of 25.02.1980, at about 6:30 to 7:00 A.M.
When she came into the courtyard, she saw that her father, Saryug
Lal, was being held by Shailendra Kumar Pandey, while
Dharmendra Kumar Pandey and Narender Kumar Pandey were
assaulting him. Her mother, Jhalia Devi (PW 1), raised an alarm.
Ramesh Ji and Ramanandan came there and tried to separate the
persons involved in the quarrel. PW 4 also intervened to separate
them and in the process, she sustained injury on her left hand.
When her husband Purshottam came from outside, Vijay and
Prabhu Narayan assaulted Purshottam on his head with a
mosquito-net stick and an iron rod respectively. After sustaining
Patna High Court CR. APP (DB) No.132 of 1996 dt.30-10-2026
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the blows, Purshottam fell down and started bleeding. The family
members took him to the hospital, where he died in the same
evening.
50. In the cross-examination, this witness (PW 4)
deposed that she had not seen her husband being assaulted with
any sharp-edged weapon. She had not seen any sharp-edged
weapon in the hands of Vijay or Prabhunarayan and had not seen
either of them assaulting her husband with any such weapon. She
further deposed that her husband was not present at the beginning
of the quarrel and had arrived after the initial quarrel had ended.
When her husband arrived, Prabhunarayan and Vijay were on the
staircase. She denied the suggestion that the occurrence had not
taken place in the manner stated by her or that she had not
witnessed the assault upon her husband. She further stated that she
had not accompanied her husband to the hospital. She had deposed
before the police that Shailendra was holding her father and
Dharmendra and Narender were assaulting him. She had also
stated before the police that, on her mother's raising an alarm,
Ramesh and Ramanandan came and tried to separate the persons
involved in the quarrel and that she sustained injury on her hand
while attempting to separate them. She denied the suggestion that
she had not made such a statement before the police regarding the
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assault by Dharmendra, Sailendra and Narender. She further
denied the suggestion that she was naming these persons for the
first time in Court after being tutored.
51. Having carefully re-appreciated the entire evidence
on record, this Court proceeds to examine whether the prosecution
has succeeded in proving the guilt of the appellants beyond
reasonable doubt.
52. At the outset, it is necessary to observe that the
prosecution case rests wholly upon the ocular testimony of PW 1
Jhalia Devi, PW 2 Saryug Lal, PW 3 Gokul Yuvraj Lal and PW 4
Nirmala Devi. All these witnesses are closely related to the
deceased. However, where the witnesses are interested or closely
related, their evidence requires careful scrutiny, particularly where
the same is confronted with the medical evidence and the
surrounding circumstances.
53. On such scrutiny, this Court finds that there are
material inconsistencies in the evidence of the eye-witnesses
regarding the precise manner in which the deceased was assaulted.
PW 1 stated that Purshottam was assaulted on the staircase and
that both Prabhu Narayan and Vijay Kumar were also on the
staircase. According to her, the assault was made from the front.
PW 2, however, stated that the assault upon Purshottam was made
Patna High Court CR. APP (DB) No.132 of 1996 dt.30-10-2026
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from behind. PW 3 also stated in cross-examination that Vijay
Kumar and Prabhu Narayan assaulted Purshottam from behind.
PW 4 similarly stated that the blows were given from behind, but
according to her, Purshottam was standing on the ground
immediately in front of the staircase whereas the assailants were
on the staircase.
54. These discrepancies, if considered in isolation,
cannot be regarded as variations arising from the lapse of time.
However, they cannot be viewed in isolation in the present case
because the medical evidence introduces a much more serious
contradiction concerning the very nature of the weapon used and
the injuries sustained by the deceased.
55. According to PW 1, PW 2, PW 3 and PW 4, the
deceased Purshottam was assaulted by the present appellants with
an iron rod and a mosquito-net stick. The attribution of the
weapons is broadly consistent in their examination-in-chief,
although the witnesses differ regarding the precise position from
which the blows were delivered. PW 1 attributed the iron rod to
Prabhu Narayan and the mosquito-net stick to Vijay Kumar. PW 2
also stated that Prabhu Narayan used an iron rod and Vijay Kumar
used a mosquito-net stick. PW 3 and PW 4 similarly attributed the
two weapons to the appellants.
Patna High Court CR. APP (DB) No.132 of 1996 dt.30-10-2026
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56. The medical evidence, however, stands on an
entirely different footing. PW 9, who examined Purshottam Prasad
at the PMCH Emergency Ward, found that the injuries were caused
by sharp cutting weapon. Most importantly, when specifically
cross-examined, PW 9 stated that an iron rod is a hard and blunt
substance and that the injuries found upon the deceased were not
caused by an iron rod.
57. Thus, the medical evidence does not merely disclose
a minor variation from the ocular version, it directly contradicts
the prosecution case regarding the weapon allegedly used by
Prabhu Narayan. The prosecution witnesses say that Prabhu
Narayan assaulted the deceased with an iron rod, whereas the
medical witness states that the injuries were incised and were
caused by a sharp cutting weapon and were not caused by an iron
rod.
58. The contradiction becomes still more significant
because none of the eye-witnesses have attributed the use of a
sharp-edged weapon to the present appellants. On the contrary, PW
1 specifically denied having seen anybody assault Purshottam with
a sharp weapon and denied that Prabhu Narayan or Vijay had used
any sharp weapon. PW 2 similarly stated that no sharp weapon was
used and that he had not seen either appellant assault Purshottam
Patna High Court CR. APP (DB) No.132 of 1996 dt.30-10-2026
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with a sharp weapon. PW 3 also categorically stated that he had
not seen Purshottam being assaulted with a sharp weapon and had
not seen any sharp-edged weapon in the hands of Prabhu Narayan
or Vijay. PW 4 likewise stated that she had not seen any sharp
weapon in the hands of either appellant.
59. Therefore, the medical evidence establishes injuries
caused by a sharp cutting weapon. No prosecution witness explains
who possessed or used the sharp weapon which, according to the
doctor, caused the injuries. There is also no evidence connecting
any sharp-edged weapon with either of the appellants.
60. The second injury found by PW 9 was an incised
wound on the left wrist. This injury has not been satisfactorily
explained by the prosecution. None of the eye-witnesses has stated
that either Vijay Kumar or Prabhu Narayan caused an injury to the
wrist of Purshottam with a sharp weapon. The prosecution has also
not brought on record any evidence explaining the circumstances
in which this incised injury was sustained. The absence of such
explanation assumes significance because the prosecution relies
upon the same occurrence as the cause of death.
61. More importantly, even assuming that an iron rod
and mosquito-net sticks were seized during investigation, there is
no medical or scientific evidence connecting those articles with the
Patna High Court CR. APP (DB) No.132 of 1996 dt.30-10-2026
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injuries found upon Purshottam. The medical witness has
specifically excluded the iron rod as the cause of the injuries.
Thus, the alleged recovery of the blunt weapons does not resolve
the fundamental contradiction between the ocular and medical
versions.
62. Another important circumstance is the non-
examination of the Investigating Officer. It is true that non-
examination of the Investigating Officer is sufficient by itself to
demolish the prosecution case. The effect of such non-examination
depends upon the facts of each case and, particularly, upon
whether prejudice has been caused to the accused.
63. In Behari Prasad v. State of Bihar, reported in
(1996) 2 SCC 317 , the Supreme Court observed that although the
non-examination of the Investigating Officer is not invariably
fatal, the Court must examine whether prejudice has been caused
to the accused. If the defence is deprived of an effective
opportunity to establish contradictions, challenge the investigation
or test the veracity of the prosecution witnesses, the omission
assumes importance while appreciating the prosecution evidence.
64. In Kapil Deo Sinha v. Kirandeo Prasad and
Another , reported in (2008) 14 SCC 658, the Hon'ble Supreme
Court upheld an acquittal recorded by a Division Bench of this
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Court on the ground that the non-examination of the Investigating
Officer and the doctor, taken together with unreliable ocular
evidence, caused serious prejudice to the accused.
65. In the present case, however, the Investigating
Officer was a material witness. The cross-examination of PW-1 to
PW-4 contains several references to what they allegedly stated
before the police. PW-3, in particular, has given a detailed account
of what he claims to have told the police regarding the position of
the deceased, the weapons used, the direction from which the
assault was made and the role of the appellants. There are also
questions concerning the exact place of occurrence, the staircase,
the position of the witnesses and the alleged seizure of weapons. In
such circumstances, the absence of the Investigating Officer has
deprived the defence of an effective opportunity to establish the
alleged omissions and contradictions by reference to the case diary
statements and to prove the manner in which the investigation was
conducted.
66. The prejudice caused by non-examination of the
Investigating Officer is, therefore, not merely theoretical. It
assumes significance because the prosecution witnesses
themselves have given materially different descriptions of the
position of the deceased and the assailants at the time of assault.
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The Investigating Officer could have thrown light upon the
physical features of the place of occurrence, the staircase, the
position of the alleged witnesses and the actual articles seized from
the spot.
67. This Court is, therefore, of the considered opinion
that the non-examination of the Investigating Officer has caused
serious prejudice to the defence. The appellant was denied the
valuable right of effectively proving contradictions, testing the
fairness of the investigation, and confronting the prosecution
witnesses with their previous statements. In the peculiar facts of
the present case, non-examination of the Investigating Officer
further weakens the prosecution case.
68. Equally significant is the non-examination of the
doctor who conducted the post-mortem examination of the
deceased. The prosecution has examined PW 9, who examined
Purshottam in the emergency ward, but the doctor who conducted
the post-mortem examination has not been examined. The post-
mortem report and the inquest report have also not been duly
proved through the competent witness.
69. The omission assumes considerable importance in
the peculiar facts of the present case. The deceased admittedly died
several hours after the alleged assault. Therefore, the prosecution
Patna High Court CR. APP (DB) No.132 of 1996 dt.30-10-2026
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was required to establish, through reliable medical evidence, the
exact cause of death and the nature of the injuries responsible for
death. The emergency examination by PW 9 establishes that the
deceased had sustained two incised injuries, but it does not, in the
absence of the post-mortem evidence, satisfactorily establish
which injury ultimately caused the death or whether the injuries
attributed to the appellants were sufficient to cause death.
70. It is also relevant that the bed-head ticket has been
exhibited, but PW 9 himself stated that the second page was not a
duplicate or attached copy in the ordinary sense, despite the report
referring to an attached copy. This circumstance further requires
caution in placing reliance upon the documentary medical material
without the evidence of the appropriate treating/post-mortem
doctor.
71. The Court is conscious that medical evidence is
generally corroborative and that where credible ocular testimony is
available, a mere inconsistency with medical evidence may not
necessarily result in acquittal. But the present case is materially
different. Here, the medical evidence does not merely fail to
corroborate the prosecution; it specifically contradicts the alleged
weapon attributed to one of the appellants and identifies a different
nature of weapon altogether.
Patna High Court CR. APP (DB) No.132 of 1996 dt.30-10-2026
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72. The Court also notices that PW 2 stated that before
Purshottam was assaulted, the initial quarrel had already been
pacified and the persons involved had been separated. He further
stated that thereafter Sailendra, Dharmendra and Buchi did not
assault anyone. This part of the evidence indicates that the alleged
assault upon Purshottam was a subsequent and distinct episode.
The prosecution was consequently required to establish with
particular clarity what happened during this second episode and
what exactly was done by each appellant.
73. PW 3 stated that Purshottam had attempted to pacify
the quarrel and had taken Prabhu Narayan, Vijay and Sushil
towards the staircase. According to him, while Purshottam was
returning downstairs, the appellants assaulted him. PW 4, however,
stated that her husband had arrived only after the initial quarrel had
ended and that he was standing on the ground when the appellants
assaulted him from the staircase. PW 1 gave yet another version
regarding the relative positions. These variations, coupled with the
medical contradiction, create a reasonable doubt regarding the
precise manner of the fatal assault.
74. The Court also takes note of the fact that the
prosecution witnesses themselves denied the use of a sharp
weapon. This is not a case where the witnesses have simply failed
Patna High Court CR. APP (DB) No.132 of 1996 dt.30-10-2026
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to mention the weapon. They have positively stated that no sharp
weapon was used by the appellants. Thus, the medical opinion that
the injuries were caused by a sharp cutting weapon creates an
affirmative conflict with the prosecution's ocular account.
75. The prosecution has not examined any witness who
could explain the presence of the sharp weapon or identify the
person who used it. The alleged knife carried by Sushil Kumar
appears in the testimony of PW 1 and PW 3, but both witnesses do
not attribute the stabbing or cutting injury to him. More
importantly, there is no evidence establishing that the incised
wounds found by PW 9 were caused by that knife or by any
weapon connected with the present appellants.
76. So far as Vijay Kumar is concerned, the prosecution
attributes a single blow with a mosquito-net stick to him, but the
medical evidence does not establish that the injuries upon the
deceased were caused by such a blunt object. So far as Prabhu
Narayan is concerned, the prosecution attributes a single blow with
an iron rod to him, but PW 9 expressly rules out an iron rod as the
cause of the injuries. Thus, the prosecution has failed to establish a
reliable nexus between the overt acts attributed to either appellant
and the injuries responsible for the death.
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77. It is also material that the learned Trial Court
acquitted the other co-accused persons, who were alleged to have
participated in the same occurrence. The acquittal of the co-
accused does not, as a matter of law, automatically entitle the
present appellants to acquittal. Nevertheless, where the entire
prosecution story arises from one occurrence and substantially the
same witnesses constitute the basis of the case against all the
accused, the Court must examine whether the evidence against the
appellants is qualitatively different and substantially stronger.
78. On such examination, this Court does not find any
independent circumstance which provides a safe and legally
sustainable basis for distinguishing the case of the present
appellants from the weaknesses inherent in the general prosecution
version. The same witnesses who attributed various overt acts to
the other accused have not been found sufficiently reliable by the
Trial Court to sustain their conviction. The evidence against the
present appellants also remains uncorroborated on the material
question of the fatal injury.
79. It is a settled principle of criminal jurisprudence that
the prosecution must stand on its own legs and must prove the
charge beyond reasonable doubt. The accused is not required to
establish his innocence. If the evidence admits of two reasonably
Patna High Court CR. APP (DB) No.132 of 1996 dt.30-10-2026
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possible views, the one favourable to the accused must ordinarily
be adopted.
80. At the same time, the Court is mindful that the death
of Purshottam Prasad is not in dispute. The fact that he sustained
injuries and subsequently died is also substantially established.
The real question, however, is not whether Purshottam died an
unnatural death after an occurrence, but whether the prosecution
has proved beyond reasonable doubt that the injuries causing his
death were inflicted by Vijay Kumar and Prabhu Narayan in the
manner alleged.
81. The prosecution has also failed to produce any
independent witness who allegedly arrived at the place of
occurrence on hearing the alarm. According to the prosecution case
itself, many persons had assembled after the occurrence. Yet, none
of those independent persons have been examined to corroborate
the alleged assault.
82. It is true that non-examination of independent
witnesses is not, by itself, fatal to the prosecution case if the
evidence of the witnesses examined is otherwise wholly reliable.
However, in the present case, the evidence of the principal
witnesses is itself subject to material contradictions and is not
adequately corroborated by medical, forensic or other independent
Patna High Court CR. APP (DB) No.132 of 1996 dt.30-10-2026
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evidence. Therefore, the non-examination of independent
witnesses assumes significance.
83. In the circumstances indicated above, it was
impossible to place implicit reliance on the evidence of the
prosecution evidence. In the absence of any other evidence,
supporting the description of the occurrence given by the eye
witnesses, coupled with the medical evidence, one has no option,
but to hold that none of these witnesses can be treated or held to be
wholly reliable, and their evidence would fall in the category of
wholly unreliable.
84. It is trite that the witnesses, ordinarily, fall into three
distinct categories, namely, (i) wholly reliable, (ii) wholly
unreliable and (iii) neither wholly reliable nor wholly unreliable. If
the witness is wholly reliable, his evidence can be implicitly relied
upon and such a witness’s testimony can be made basis for
conviction of an accused. Similarly, when a witness is found to be
wholly unreliable, no reliance can at all be placed on his evidence
and his evidence has to be rejected outright. When, however, a
witness is found to be neither wholly reliable, nor wholly
unreliable, his evidence cannot be accepted as true unless his
evidence is found to have been corroborated by some credible
independent evidence, direct or circumstantial.
Patna High Court CR. APP (DB) No.132 of 1996 dt.30-10-2026
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85. In the facts and attending circumstances of the
present case, I am of the view that the prosecution has failed, in the
light of the discussion of the evidence on record, to bring home the
charges against the appellants beyond all reasonable doubt.
86. In the result and for the foregoing reasons, this
appeal is allowed. The impugned conviction of the appellants and
the sentence passed against them by the judgment and order, under
appeal, are hereby set aside. The appellants are held not guilty of
the offence, which they stand convicted of, and they are hereby
acquitted of the same under benefit of doubt.
87. Since the appellants are on bail, they are discharged
from the liabilities of their bail bonds.
88. Registry shall, forthwith, send a copy of this
judgment and order to the learned trial Court along with the Lower
Court Records.
89. The Court records the valuable assistance rendered
by Mr. Ram Lal Sharan and Mr. Atul Kumar, Law Assistants,
attached with this court.
(Anil Kumar Sinha, J.)
Vikash Kumar, J. :-
I agree.
(Vikash Kumar, J.)
Prabhakar Anand/-
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AFR/NAFR AFR
CAV DATE 23-09-2026
Uploading Date 30-10-2026
Transmission Date 30-10-2026