CRIMINAL APPEAL 27 of 1989 on 5 November 2004

1. Bhim Singh @ Bhimsen Singh2. Arjun Singh @ Dinanath Singh Both sons of Radhey Shyam Singh, residents of village- Chakia, P.S. Sikarhatta, District- Bhojpur at Ara.

... ... Appellant/sVersus

State Of Bihar

CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMANORAL JUDGMENTDate : 22-09-2025

By this appeal, appellants/convicted accused,Bhim Singh @ Bhimsen Singh and Arjun Singh @ DinanathSingh, are challenging the judgment of conviction and order ofsentence dated 05.11.2004 passed by Sri Avinash Kumar Sinha,Additional Sessions Judge (F.T.C.) No.II, Ara, Bhojpour, inSessions Trial No.449 of 1990, arising out of Sikarhatta P.S.Case No.27 of 1989, thereby convicting them of the offencepunishable under Section 323 of the Indian Penal Code andsentenced them to suffer rigorous imprisonment for one year.

2. The case of the prosecution, as unfolded bythe First Information Report, may, in brief, be described asunder:

(i) . On 28.05.1989, at about 10:00 AM, while theinformant, Ram Keshwar Singh, was keeping paddy straw onthe open land adjacent north to his house, at that time RadheySingh, Bhuneshwar Singh, Potan Singh @ Ram Ayodhya Singhand sons of Radhey Singh, whose name he does not know, camethere and prevented him from keeping paddy straw on that landand also created obstruction in it. When he inquired, thenaccused Radhey Singh and Bhuneshwar Singh started abusinghim. Thereafter, in return the informant also abused him then thematter aggravated and exchange of hot words started.Thereafter, two sons of Radhey Singh, whose name he does notknow, involved with the informant. Thereafter, Radhey Singh,Bhuneshwar Singh and Potan Singh @ Ayodhaya SinghExhorted the two saying that they are also ready. All these threepersons were armed with big and small gun. Accused RadheySingh was armed with his licensee gun and two sons of RadheySingh thrashed him on the ground and started beating him withlathi, then informant’s son Jay Singh and Nau Singh went on theroof of their house and started pelting stones from the roof, buthe could not notice who sustained injury by this brick batting.Thereafter, accused Bhuneshwar Singh and Radhey Singhopened fire and from their shots, sons of Radhey Singh received injury and there was stampede. The informant received injuryon his head, right shoulder and retina of the right eye. Thewitness Jay Bhagwan Singh, Prakash Singh, Ramadhar Singhand Vinod Singh carried him to Fatehpur and from there he wentto the State dispensary Piro on a tractor and he was treated atPiro State Dispensary and his fardbeyan was recorded there at3:40 PM.

(ii) On the basis of the fardbeyan of RamKeshwar Singh (PW 5), Sikarhatta P.S. Case No.27 of 1989 wasregistered, on 29.05.1989, under Sections 147/148/149 /307 /323/324/341/447/504 of the I.P.C and under Section 27 of theArms Act against the accused persons including the presentappellants.

3. The police, on completion of investigation, submitted charge sheet under Sections 307, 323, 324,447 and504 of the Indian Penal Code against all the five accusedpersons. The learned Chief Judicial Magistrate by order dated21.11.1989 took cognizance of the offence and the case wascommitted to the Court of Sessions on 01.12.1990.

4. At the Trial, charges, under Sections 307/149and 449 of the Indian Penal Code were framed on 19.02.2001against all five accused persons including the present appellants and charge under Section 27 of the Arms Act was also framedagainst Radha Singh, Bhuneshwar Singh and Potan Singh @Ayodhaya Singh, on which they pleaded not guilty.

5. In support of their case, prosecution hasexamined altogether six witnesses. The accused persons, duringtheir examination under Section 313(1)(b) of the Cr.P.C., deniedthe allegations and on their behalf examined one defencewitness DW 1 Krishan Ballav, who has proved the formal FIRand fardbeyan of Sikarhatta P.S. Case No.27 of 1989, whichhave been marked as Exts-A and B respectively. This witnesshas further proved three injury reports of accused RadheyShyam Singh, Arjun Singh and Bhim Sen Singh, which havebeen marked as Ext.-C series.

6. The Trial Court found the appellants BhimSingh @ Bhimsen Singh and Arjun Singh @ Dinanath Singhguilty of the charge under Section 323 of the Indian Penal Code.Following their conviction, sentence has been passed against theconvicted accused/appellants as mentioned above. However,giving benefit of doubt to co-accused Radhey Shyam Singh andPotan Singh @ Ayodhya Singh, the Trial Court had acquittedthem from all the charges.

7. Being aggrieved and dissatisfied by his judgment of conviction and order of sentence, the convictedaccused/appellants have preferred this appeal.

8. Heard Mr. Ram Vinay Sharma, learnedCounsel, appearing on behalf of the appellants and Mr. A.M. P.Mehta, learned Additional Public Prosecutor, appearing onbehalf of the State.

9. Learned Counsel for the appellants submits that the said judgment and order is not sustainable in the eye oflaw due to the reason that the learned Trial Court has reached ona definite finding that on the categorical finding as mentioned inparagraph-15 of the Trial Court’s Judgment that “On carefulexamination of the entire evidence, I find that the prosecutionwitnesses have made several developments and have not comewith the clean hand and time to time came out with a casesoothing to them.” Learned Counsel for the appellants insupport of the findings of the Trial Court has relied on ajudgment of Hon’ble Supreme Court in the case of State ofBihar Vs. Bishwanath Rai and Others with Ramesh PrasadThakur and Another Vs. Ram Chandra Singh and Anotherreported in AIR 1997 SC 3818, in which at paragraph 5, it hasbeen held that once it has been found that the eyewitness hadnot given the correct account of the manner in which incident had taken place, then the High Court was justified in discardingtheir evidence even though it was otherwise consistent. On thebasis of the said finding given by Hon’ble Apex Court, hesubmits that when the Trial Court reached on the finding that thewitnesses of the prosecution case in the present matter have notcome with clean hands, therefore, on that basis no punishmentcould be given. In addition to that learned Counsel for theappellants further submits that in the present case neitherinvestigating officer nor medical officer have been examinedand due to the non-examination of the I.O. and the MedicalOfficer, the prosecution failed to prove the place of occurrenceas well as injury and, therefore, he submits that the presentconviction and sentence is not sustainable in the eye of law.

10. Learned Additional Public Prosecution, onthe other hand, submits that in the present case from the FIRitself, it becomes crystal clear that there is a case and countercase. He submits that the present conviction is under Section323 of the Indian Penal Code and for that injury report is notrequired and there is an ocular evidence, who supported thestory of FIR. He, therefore, submits that there is no need of anyinterference.

11. After hearing the parties and upon perusal of the lower court records, it transpires that there are in total 6prosecution witnesses in the present case. PW 1 Jai PrakashSingh and PW 3 Birendra Singh are the hearsay witness, PW 2Jai Bhagwan Singh and PW 4 Gidik Singh are the eyewitness ofthis case, PW 5 Ram Keshwar Singh is the informant of thiscase and PW 6 Krishna Ballav Sahay. Krishna Ballav Sahay hasalso been examined as a formal witness, who has proved theformal FIR and fardbeyan of Sikarhatta P.S. Case No.26 of 1989which has been marked as Exhibits- A and B respectively. Hehas also proved three injury reports of accused Radhey ShyamSingh, accused Arjun Singh and accused Bhim Sen Singh,which have been marked as Exhibit- C series.

12. Out of these witnesses, PW 6 is a formalwitness, who has proved injury report Ext-2 and his evidenceneeds no further discussion. PWs. 1 and 3 are not theeyewitnesses to the occurrence; rather hearsay witness and theyclaimed to have arrived at the place of occurrence and learntabout the occurrence from the informant and the evidence ofPWs. 1 and 3 are based on the information of PW 5 theinformant. 13. PW 1 Jay Prakash Singh deposed that theoccurrence took place 12 years ago at about 10:00 AM. At the relevant time he was in his cattle shed and he learnt that somequarrel took place in his village and when he went to the placeof occurrence, he saw that his brother Keshwar is lying in adrain in injured condition. He further deposed that his brother(Keshwar Singh) said him that Bhim and Arjun has thrashedhim in the drain and assaulted him. He further said that Bhimand Arjun sustained fire arm injury and firing made byBhuneshwar Singh one of the co-accused (since dead).Similarly, PW 3 Birendra Singh also deposed that on therelevant date of occurrence while he was at his Dalan he heardhalla of Jai Bhagwan his uncle and went there and saw that hisuncle Ram Keshwar was in injured condition. He furtherdeposed that he did not see the actual occurrence and he took hisuncle to the hospital for treatment.

14. PW 2 Jai Bhagwan Singh is the eyewitness tothe occurrence. He deposed that at the relevant time ofoccurrence he was going to flour mill to bring flour. At therelevant time, he heard halla and went near the house of RamKeshwar Singh and saw that accused Arjun Singh was holdingthe arm of Keshwar Singh (PW 5 informant) and thrashed himin the drain and thereafter accused Arjun Singh gave a farshablow on his head and accused Bhim Singh assaulted informant

Keshwar Singh with lathi on his right shulder while he was infallen condition. He further deposed that on alarm his twonephew, namely, Jai Singh and Nau Singh, came running. Theywent on the roof of his uncle and started brick batting. In thisbrick batting accused Radhey Shyam and Bhin Singh receivedinjury. He further deposed that Radhey Shyam Singh openedfire with his rifle aiming towards the roof of his uncle but it hitto the wall. When the informant Keshwar Singh attempted toescape, the accused Bhuneshwar Singh (since dead) opened firewith a country-made gun at Keshwar Singh, which hit to ArjunSingh in stead of Ram Keshwar Singh and thereafter stampedetook place. He took Keshwar Singh to hospital with the help ofhis family members.

15. PW 4 Gidik Singh is also an eyewitness tothe occurrence. He deposed in his evidence that he arrived at theplace of occurrence on hearing halla and saw Keshwar Singhlying in the drain. He deposed that accused Radhey Singh wasarmed with lathi and Bhuneshwar was armed with country madegun. He deposed that Jai Singh and Nau Singh were brickbattingfrom the room which hit to accused Radhey Singh and hebecame angry and opened fire, which hit on the wall of thehouse of Keshwar Singh. He further deposed that when Keshwar Singh was attempting to escape from the place ofoccurrence, accused Bhuneshwar Singh fired at him which didnot hit to Keshwar Singh.

16. PW 5 Ram Keshwar Singh is the informantof this case. He deposed that while he was keeping paddy strawon the disputed land of accused Radhey Singh, accusedBhuneshwar Singh, Arjun Singh and Bhimsen Singh came there.He further deposed that accused Radhey was armed with rifle,accused Bhuneshwar Singh (since dead) was armed withcountry-made gun, accused Arjun was armed with farsha,accused Bhim was armed with lathi and they threw the paddystraw. On protest made by the informant, all the accusedpersons abused the informant. He further deposed that when he(informant) left the place and proceeded 4-5 hand ahead, theaccused Arjun Singh and Bhim Singh caught hold him andthrashed him in a drain. He deposed that Arjun assaulted withfarsha on his head and Bhim assaulted him with lathi on his leftshoulder joint and right wrist. He further deposed that when heraised alarm for safety, his nephew Nau and Jai went on the roofand they started brick batting. One of the brick hit to RadheyShyam Singh and Radhey Shyam Singh opened fire which hit toaccused Arjun and stampede took place and the accused fled away. He was brought to hospital where his fardbeyan wasrecorded. He proved his signature on his fardbeyan as Ext-1.

17. After hearing the parties and going throughthe documents placed on record, it transpires to this Court thatthe Trial Court in paragraph Nos.15, 16 and 17 have discussedthe prosecution case and reached on the finding that theprosecution witnesses were not consistent and they have tried todevelop their case at subsequent level and have not come withclean hands. But the utmost point, in the opinion of this Court,is that for the purpose of proving a case, according to criminaljurisprudence, the said proof must be beyond all reasonabledoubts. Here in the present case, admittedly, neither theInvestigating Officer nor the Medical Officer has beenexamined.

18. This Court is of the firm view that story ofFIR and the evidence must have to be supported with othermaterials. Here in the present case, due to non-examination ofthe I.O. the place of occurrence has not been ascertained.Similarly, the injury has also not been ascertained. The learnedCounsel for the appellant has relied on the judgment of State ofBihar Vs. Bishwanath Rai and Others with Ramesh PrasadThakur and Another Vs. Ram Chandra Singh and Another (supra), whose paragraph-5 reads as under:

“The High Court after taking

into consideration all these aspects found it unsafe to rely upon the evidence of eye-witnesses. Once it found that theeyewitnesses had not given the correctaccount of the manner in which the incidenthad taken place, then the High Court wasjustified in discarding their evidence eventhough it was otherwise consistent. Thelearned counsel for the appellants could notpoint out any infirmity in the other findingsrecorded by the High Court.”

19. From perusal of the record, it transpires that the said two appellants have received injury. Similarly, the other persons to whom they have alleged to have been assaultedhave also received injury, but none of the injury has beenascertained on the record of the case legally, due to the reasonthat the Medical Officer has not been examined.

20. In view of the above situation, when neither

I.O. nor medical officer has been examined, due to which neither place of occurrence nor injury has been ascertained.

Hence, this Court has no option but to hold that the ingredient ofSection 323 of the Indian Penal Code is not attracted in thepresent case against the present appellants.

21. Considering the facts and circumstances ofthe case, this Court is of the firm view that the prosecution hasfailed to prove the charge under Section 323 of the Indian PenalCode against the appellants. Hence, the appeal is allowed. Theimpugned judgment of conviction and order of sentence dated05.11.2004 passed by Sri Avinash Kumar Sinha, AdditionalSessions Judge (F.T.C.) No.II, Ara, Bhojpour, in Sessions TrialNo.449 of 1990, arising out of Sikarhatta P.S. Case No.27 of1989, is quashed and set aside. The appellants are acquitted ofthe offence held to be proved against them. The appellants areon bail. Their bail bonds are ordered to be cancelled.

22. Let the Lower Court Records be sent back tothe learned Trial Court with a copy of this judgment and order.

(Dr. Anshuman, J)

Mkr./-

AFR/NAFRNAFRCAV DATENAUploading Date27.09.2025Transmission Date27.09.2025