Patna High Court
Kulbansh Singh vs The State Of Bihar on 6 February, 2026
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.377 of 2003
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1. Kulbansh Singh S/O Ambika Singh R/O Vill.- Bahera, P.S.- Sonhan, Dist.-
Kaimur
2. Ramswarath Singh @ Arbind Singh S/O Ambika Singh R/O Vill.- Bahera,
P.S.- Sonhan, Dist.- Kaimur
... ... Appellants.
Versus
The State of Bihar.
... ... Respondent.
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Appearance :
For the Appellant/s : Ms. Surya Nilambari, Amicus Curiae
For the Respondent/s : Mrs. Anita Kumari Singh, APP
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CORAM: HONOURABLE JUSTICE SMT. SONI SHRIVASTAVA
ORAL JUDGMENT
Date : 06-02-2026
The present appeal under Section 374 (2) of the
Code of Criminal Procedure, 1973 (hereinafter referred to as
'Cr.P.C.') has been preferred against the judgment of conviction
and order of sentence dated 30.07.2003 passed by the Court of
learned 1stAdditional Sessions Judge, Bhabua in Sessions Trial
No.166/97 of 1987/1998, arising out of Bhabua (Sonhan) P.S.
Case No.29/87, whereby and whereunder the appellants have
been convicted under Section 307 of the Indian Penal Code
(hereinafter referred to as the 'IPC') and sentenced to undergo
rigorous imprisonment for five years. The appellants have been
further sentenced to undergo rigorous imprisonment for three
years for conviction under Section 27 of the Arms Act.
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2. From a perusal of the order-sheets, it appears that
the appeal with regard to convict (appellant) Ambika Singh has
already been abated vide order dated 24.11.2025 and now this
appeal survives only as against appellants Kulbansh Singh and
Ramswarath Singh, appellants no. 1 and 2 respectively.
3. The short facts of the case as per the First
Information Report based on the fardbeyan of Bairister Singh
(P.W.6), which was recorded by A.S.I., R.S. Pandey (P.W.11) of
Bhabua P.S. on 01.02.1987 at about 5:30 pm was that on the
same day i.e. on 01.02.1987 at around 2 pm, the goats of his co-
villager, Ambika Singh were grazing his field and upon seeing
the same, his father Guptnath Singh (P.W.5) brought the goats to
his sitting place. In the meantime, the villagers Ram Pravesh
Singh, Ram Swarath Singh alias Arbind Singh and Kulbansh
Singh, armed with guns, while Ambika Singh armed with a
Bhala, came to the door of the house of the informant and
indulged in hurling abuses while enquiring as to why his goats
were brought to the house of the informant. On such issue, a
verbal embroil ensued between the parties and in course of such
verbal altercation, Ambika Singh exhorted his son to kill
everyone, whereupon his son, Ram Swarath Singh alias Arbind
Singh fired at the father of the informant, Guptnath Singh with
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his country made gun on account of which he sustained pellet
injuries on the neck, face, chest and other places and fell down
with the said injuries. It has further been alleged that when
informant and his uncle Suraj Nath Singh (P.W.4) tried to
intervene in the matter, Kulbansh Singh fired with his country
made gun at Suraj Nath Singh, uncle of the informant, causing
injury near his left eye and other places, while Ambika Singh
inflicted a Bhala blow upon the informant due to which he
sustained injury on his right hand. Upon hearing the sound of
alarm, Dinanath Singh (P.W.1), Ramjee Singh (P.W.9) and the
informant's younger brother, Shyamdeo Singh (P.W.3) along
with several other co-villagers arrived at the place of occurrence
but they ran away to their houses upon hearing the fact that the
father of the informant was shot at. The injured Guptnath Singh
was brought to the hospital in an unconscious condition and he
was not in a position to give his statement.
4. On the basis of the above-mentioned fardbeyan
of Bairister Singh (P.W.6) Bhabua P.S. Case No.29 of 1987 was
instituted under Sections 447, 324 and 307/34 of the I.P.C. and
Section 27 of the Arms Act. After investigation, chargesheet was
submitted on 03.04.1987 in the Court of learned Additional
Chief Judicial Magistrate under Sections 326, 324 and 307/34 of
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the I.P.C. and Section 27 of the Arms Act against the accused
persons including the present appellants, whereupon cognizance
was taken and the case was committed to the Court of Sessions
being numbered as Sessions Trial No.166/97 of 1987/1998,
whereafter the charges were framed by the learned Trial Court
against the appellants under Sections 326 and 307 of the I.P.C.
as also under Section 27 of the Arms Act on 10.05.1989.
5. The prosecution, in order to substantiate its case,
has examined altogether 12 witnesses out of whom, P.W.1-
Dinanath Singh is the uncle of the informant, P.W.2-Jang
Bahadur Singh is the son of P.W.9-Ramjee Singh, P.W.3-
Syamdeo Singh younger brother of the informant, P.W.4-
Suryanath Singh uncle of the informant, P.W.5-Guptnath Singh,
father of the informant and P.W.6-Bairister Singh is the
informant himself. All these witnesses have claimed themselves
to be eye witnesses, while P.Ws.4, 5 and 6 are even said to be
injured eye witnesses. P.W.7-Dr. R.N. Saran is the medical
expert who examined the injuries of all the three injured persons
i.e. P.Ws.4, 5 and 6, while P.W.8-Rup Narain Singh is a formal
witness who has identified the handwriting on the formal F.I.R.
and P.W.9-Ramjee Singh has been tendered for cross-
examination. Gauri Shankar Singh, the Investigating Officer of
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the case, has been examined as P.W.10, P.W.11-Ram Sideshwar
Pandey recorded the fardbeyan of P.W.6 while P.W.12-Gauri
Shankar Pandey another formal witness who identified the
signature on the discharge slips marked as Exts.5 to 5/1 and
prescriptions as Exts.6 and 6/1 respectively.
6. On behalf of the defence, three witnesses have
been examined and they are all formal in nature and have proved
certain documents with regard to indicate litigation between the
parties.
7. After closing the prosecution witnesses, the
learned Trial Court proceeded to record the statement of the
appellants under Section 313 Cr.P.C. on 28.07.1998, enabling
them to personally explain the circumstances appearing in the
evidence against them, however they denied the said charges
and circumstances.
8. The learned Trial Judge, upon appreciation,
analysis and scrutiny of the evidence adduced during the trial,
has found the appellants guilty of the offences under Section 307
of the I.P.C. and Section 27 of the Arms Act, while acquitting
the appellants under Section 326 of the I.P.C. and has sentenced
them to imprisonment by the impugned judgment of conviction
and order of sentence as narrated in the foregoing paragraph.
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9. I have heard the arguments of Ms. Surya
Nilambari, learned Amicus Curiae for the appellants and Ms.
Anita Kumari Singh, learned APP for the State at length.
10. It has been argued on behalf of the appellants
that the prosecution has failed to establish its case beyond all
reasonable doubts and despite witnesses having been examined
on behalf of the prosecution, who have even been shown to be
injured witnesses, their evidence are worth discarding on
account of the fact that they have not come up with the true
picture of the case and have left several questions unanswered
leading to several loopholes in the prosecution case. Learned
amicus has argued that the present case rests on the evidence of
very closely related witnesses and the sheet-anchor of the entire
prosecution is the medical evidence, which has been adduced in
the form of the evidence of P.W.7, Dr. R.N. Saran, who has
indicated the presence of several injuries on the person of the
injured witness, Guptnath Singh. The doctor (P.W.-7) has noted
the injuries numbering to several lacerated wounds, making it a
total of as many as 19 lacerated injuries and he has opined that
all the injuries mentioned in the said report were grievous and
caused by firearms. In this regard, it has been argued that the
said injury report is not worth believing and the medical expert
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seems to have gone overboard in his enthusiasm, by indicating
so many injuries and this has to be viewed in the background of
the fact that although the injuries are said to have been caused
by pellets, the X-ray plate showing that 13 pellets have been
found in the skull and 17 pellets in the chest but, as a matter of
fact, not a single pellet has been recovered from the body of the
injured and produced before the Court.
11. Ms. Surya Nilambari has further argued that it is
not the case of the prosecution that the pellets or traces of
firearm shots were recovered at the place of occurrence in order
to substantiate the fact that the injured persons have received
such firearm injuries. The next glaring factor that has been
submitted with regard to the genuineness of the injury report,
which seriously questions the very existence of injury upon the
injured person is the fact that neither any X-ray plate nor any X-
ray report has been brought on record in order to lend any
credence to the finding of the injury by the concerned doctor.
The entire story of getting injured and the treatment undergone
by the injured persons further gets shrouded in mystery on
account of the fact that both P.Ws.4 and 5 have made clear
statements in their depositions during trial that they had been
taken to the Banaras Hindu University Hospital (B.H.U.) for
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treatment. However, the statement of the injured witness,
Guptnath Singh (P.W.5) was recorded at the Bhabua hospital on
the third day of the occurrence while P.W.4-Suryanath Singh,
uncle of the informant also an injured witness, has stated in his
evidence that they were taken to B.H.U. at 8 pm on the date of
occurrence and came back to Bhabua on the 2 nd morning from
Banaras. It has been argued that there is no document
whatsoever, indicating any such reference to Banaras or any
treatment undertaken by the injured persons on record and the
doctor has also negated the fact that he had referred the injured
to any higher center for treatment by deposing that he does not
remember that he had referred the patient to any higher center
for treatment. The medical evidence further becomes doubtful in
view of the fact that as to how the injured persons, after having
received the number and kind of injury as indicated in the injury
report, would have been in a position to travel to Banaras and
come back to Bhabua in a day and if Banaras was a higher
center, what could be the justifiable reason to come back to
Bhabua hospital.
12. It has also been argued that the doctor (P.W.7)
has failed to state anything about the treatment given to the
injured by his hands for such grievous injury having been
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suffered by them and has merely indicated the presence of the
injuries and their nature and has completely abstained from
disclosing the nature of the treatment given by him. In the
background of such facts, it has been submitted that reasonable
doubts arise with regard to the genuineness of the injury report
with regard to the allegations of firing made by the appellants on
account of which P.Ws.4 and 5 were said to have sustained
grievous injury. A reference has been made in this regard to the
case of State of Haryana vs Bhagirathi reported in 1995 (5)
SCC 96 to contend that even the medical opinion can be tested
on the ground of logic or objectivity whether it is consistent with
the probability.
13. Learned amicus has posed serious challenge to
the credibility of the prosecution witnesses in view of their
statements with regard to the injuries received by them, which
do not get adequately supported by the suspicious nature of the
injury report and also in the background of the fact that they are
inimically disposed towards the appellants as it is an admitted
fact that there was animosity between the parties and also
litigation pending between them and in support of the same the
defence witnesses have also been examined who have led
evidence, oral and documentary, to prove the strained relations
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(Ext. A to G). Further, no independent witness has been
examined on behalf of the prosecution although the occurrence
is said to have taken place in an open place. In this context, it
has also been argued that the place of occurrence has also not
been established by the prosecution, as at some places, the
witnesses have talked about the act of firing having been
indulged from the roof of the house whereas the Investigating
Officer, while describing it, has said that it was one storied
house and did not mention of any terrace. Further, no other
incriminating articles have been recovered from the place of
occurrence in order to establish and fix the place of occurrence.
It has further been argued that the very initiation of the case in
the form of lodging of the First Information Report does not
clarify as to what was the source of information to the police
with regard to the said occurrence as neither the Investigating
Officer nor the person who has lodged the fardbeyan has made
any indication as to how the police came to know about the
commission of the offence and as to how the injured person
came to Bhabua hospital. It is further submitted that the entire
case has been framed upon a very petty issue of goats of the
appellants having grazed the fields of the informant, due to
which the informant had brought the goats to his house. While
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pointing towards all these factors coupled with the several
inconsistencies and contradictions in the submissions of the
prosecution witnesses, it has been argued that since the
testimony of the witnesses are not credit worthy, their evidence
ought not have been relied upon for reaching the finding of
guilt. In this regard reference has been made to the case of
Vadivelu Thevar vs State of Madras reported in AIR 1957 SC
614 wherein the three categories of witnesses have been
discussed and it has been held that in case of witnesses falling in
the third category, who are neither wholly reliable nor wholly
unreliable, the Court has to be circumspect and look for
corroboration in material particulars by reliable testimony. In
absence of reliable testimony, it has been argued that the
impugned judgment of conviction and order of sentence is fit to
be set aside.
14. Per contra, Ms. Anita Kumari Singh, learned
APP for the State has submitted that the First Information
Report has been lodged with all promptness and, as such, there
does not seem to be any reason to doubt the initiation of the case
in the form of the First Information Report. Moreover, the
prosecution witnesses have supported their case not only as eye-
witnesses but also being the injured eye-witnesses whose
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testimonies cannot be discarded unless very strong or
compelling reasons exist for the same. She has also argued that
only by virtue of the witnesses being related to each other would
not take away the authenticity of their statements and the
medical evidence is also corroborative of the oral testimony. As
such, the prosecution through its witnesses, has been able to
establish its case beyond all reasonable doubts and the impugned
judgment of conviction and order of sentence does not warrant
any interference.
ANALYSIS AND CONSIDERATION
15. I have minutely perused both the oral and
documentary evidence, besides hearing the learned counsel for
the parties. Before proceeding further, it would be necessary to
cursorily discuss and analyze the relevant evidence on record.
16. P.W.-1, Dinanath Singh, the uncle of the
informant has stated before the police that he saw the occurrence
but it remains an admitted position that he reached the place of
occurrence after the alleged incident had already occurred. From
his evidence, it can also be inferred that he did not disclose the
names of the persons, who allegedly fired at the informant and
other victim and he also did not state before the police as to on
which body part both the P.W.-4 and P.W.-5 had sustained
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injuries. This witness has also admitted that he was not present
when the police was taking the statement of the informant (P.W.-
6) at the hospital. P.W.2, Jang Bahadur Singh is the son of
another prosecution witness PW-9 and although he has tried to
portray himself as an eye-witness, his evidence would also
indicate that when he reached the place of occurrence, he found
Suryanath Singh (P.W.4) and Guptanath Singh (P.W.5) in
standing condition but, in the same breath, it has been stated that
it was they who disclosed the names of the assailants to the
witnesses. If it is taken to understand that several gun shots had
been fired on these witnesses P.W.-4 and P.W.-5 in the presence
of P.W.-2, then it does not stand to reason as to how he has made
such statement that he found both P.W.-4 and P.W.-5 in standing
position and without any bleeding. However, the presence of this
witness at the time when the occurrence took place is rendered
doubtful, in view of the evidence of P.W.-1, Dinanath Singh,
who claims to have reached the place of occurrence first and
states that P.W.-2 and P.W.-3 both had reached after him and at
the time when he had reached, the occurrence had already taken
place. In view of the statement of P.W.-1, Dinanath Singh, the
evidence of P.W.-2, Jung Bahadur Singh and P.W.-3, Shyamdeo
Singh, who are claiming themselves to be eye-witnesses,
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becomes doubtful.
17. It now becomes important to deal with the
evidence of P.W.-4, Suryanath Singh, P.W.-5, Guptanath Singh
and P.W.-6, Bairister Singh, who are all claiming to be injured
witnesses. So far as the evidence of P.W.-4, Suryanath Singh is
concerned, he also stated that at the instigation of appellant
Ambika Singh, the appellants went on the roof and fired which
proposition itself appears to be absurd as when the persons are
armed with firearms there could have been nothing deterring
them from opening fire had there been any intention to kill or
cause serious injuries and there would be no reason for persons
going up on the roof for the said purpose. He has made specific
allegations on appellant, Kulbansh Singh of having fired at him
and upon Ambika Singh of having assaulted the informant with
spade on his hand. However, his evidence also discloses that
after treatment from Bhabua hospital they went to B.H.U. and
returned the next morning i.e. on 02.02.1987, but he has not
disclosed any manner as to what was the treatment that was
given to the injured persons at Banaras and what was the
occasion of the injured persons out of whom one PW-5 had
allegedly suffered several pellet injuries of being taken to
Banaras and being brought back to Bhabhua.
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18. So far as the evidence of PW-5, the injured
Guptanath Singh is concerned, he has claimed that he became
unconscious upon the firing being made at him and he gained
consciousness at the Banaras Hospital on the next day. After
gaining consciousness, he disclosed the names of the assailants
to Shyamdeo Singh (P.W.3) and Suryanath Singh (P.W.4) and
has further stated that he had no knowledge about the injury
report and that he also did not show the medical documents of
the Banaras hospital or of Bhabhua hospital and he also did not
have any idea whether anyone has shown such documents or
not. This witness has also denied his awareness about the land
dispute existing between the parties.
19. P.W.-6, Bairister Singh is the informant of this
case as also the injured eye-witness, who has also reiterated the
story of the appellants going on the roof for the purposes of
firing, which stands contradicted from the evidence of the
Investigating Officer (PW-10) as he has denied the fact that any
such story had been stated before him. There are several
statements made with regard to the X-ray plate etc. being given
to the doctor, but the fact remains that there is no X-ray plate or
X-ray report on record, which would lend credence to his
statement that there was actually an X-ray report and an X-ray
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plate based upon which the doctor had given his opinion with
regard to the injuries. His further statement with regard to
finding of pellets by the Investigating Officer at the place of
occurrence also gets no support from the evidence of the
Investigating Officer as he himself stated that he does not
remember as to how many pellets were found and whether any
document with regard to recovery of such pellet or blood found
at the place of occurrence was prepared or not.
20. The thrust of the argument on behalf of the
defence relates to extremely doubtful nature of medical evidence
that has been brought on record by means of the injury reports
and the evidence of the doctor (P.W.-7). Before analyzing the
evidence of the doctor (P.W.-7), it would be imperative to note
as to what were the injuries that the doctor found on the person
of Guptanath Singh (P.W.-5), as such, the injuries are being
noted hereunder:
I. Five lacerated wounds 1/4" x 1/4" muscle
deep on the front aspect of neck.
II. Four lacerated wounds 1/4" x 1/4" muscle
deep on the upper part of the front of chest.
III. Five lacerated wounds 1/4" x 1/4" muscle
deep on the forehead.
IV. One lacerated wound 1/4" x 1/4" muscle
deep on the left side of ace below left eye.
V. Three lacerated wounds 1/4" x 1/4" muscle
deep on the right side of face.
VI. One lacerated wound 1/4" x 1/4" muscle
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deep on the chest.
21. Upon looking at the injuries that have been
noted in the injury report as also in the evidence of the doctor, it
appears that as many as 15-19 pellets injuries have been
reported to be present and all the injuries have been mentioned
to be grievous in nature, but it seems strange as to how after
sustaining the kind of injuries, as has been stated, the injured
persons were in a position to go to Banaras and come back from
there to the Bhabhua hospital. It also remains a fact that there is
no document whatsoever with regard to any treatment having
been done at Banaras and yet the prosecution has brought the
case of going to Banaras by means of definite oral evidence,
thereby rendering the circumstances suspicious.
22. So far as the injury report issued by the doctor
(P.W.-7) is concerned, the same is based upon a view of the X-
ray plate showing thirteen pellets to be found in the skull and
eleven pellets to be found in chest as admitted by the doctor. In
such a situation, it was extremely imperative to bring the X-ray
plate/report on record as the entire narration of injuries and the
opinion of the doctor is based upon the same. The failure of the
prosecution to bring the X-ray plate on record has a devastating
effect on the case of the prosecution with regard to actual
injuries sustained and it goes to the very core question, as to
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whether these witnesses were injured at all and whether injury
report has been prepared on the basis of some fake and
manufactured X-ray plates or completely manufactured injury
report has been brought on record totally in absence of any X-
ray report being in existence. This Court also finds that the
medical evidence indicates only the existence of injuries, their
basis and the nature of these injuries. The evidence is totally
silent upon the nature of treatment, having been given to the
patients, who are the eye witnesses and, thus, it raises a
considerable amount of doubt in the mind of this Court, as to
whether these witnesses were actually treated by the doctor as in
case if the present doctor would have been the treating doctor of
these witnesses, he would have thrown some light on the
treatment having been given to the witnesses.
23. The other factor which further enhances the
doubt on the existence of the injuries as alleged is that not a
single pellet is said to have been recovered from the body of the
injured, as admitted by the doctor, and the basis of his findings
is only the X-ray plate, which is nowhere to be found. The
defence giving a direct suggestion to the doctor that the injury
reports have been prepared in collusion with the victims can not
be said to be without any basis. At this stage, it would be apt to
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refer to the case of Ram Singh Vs. State of Uttar Pradesh
reported in (2024) 4 SCC 208, the relevant paragraph is being
quoted hereunder:
"25 ..................... There is no
explanation of the prosecution regarding the 55
pellets retrieved from the body of the deceased
during post-mortem; whether those could be
linked to to the 12 bore cartridge and the tikli.
Importantly, the country-made pistol was never
recovered. The prosecution has not said
anything in this regard. ...".
24. Further, In the case of Rajvir Singh Vs. State of
Punjab neutral citation 2023:PHHC:080882-DB, the relevant
paragraph is being quoted hereunder:
"17. ...... In the absence of examination
of the doctor who had conducted radiological
examination of the victim and further in the
absence of specific X-ray reports and X-ray
films, no conclusion could obviously be drawn
that the injuries which were opined to be
grievous were in fact so in nature...."
25. Also, in the case of Ishtiyaq Ahmed Vs. State of
Rajasthan, Through PP and others reported in 2025 SCC
OnLine Raj 7118, wherein the importance of the X-ray plate
and the X-ray report has been noticed for giving a finding and
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an opinion upon the existence and of nature of injuries. For
ready reference, para-18 of the said judgment is being quoted
hereunder:
"18. ................................... it is clear
that for the purpose of determining the nature of
injury, examination of the medical jurist,
simplicitor would not be sufficient and the
Radiologist, based upon whose X-ray report, the
medical jurist has given his evidence, will be
required to be examined and the X-rays will be
required to be exhibited for determining the
actual nature of injury. Thus, the examination of
Radiologist is essential when the offence
alleged is under Sections 326 and 307 IPC as it
is only post his examination that the details of
the X-ray and the nature of injury, based upon
the X-ray can be brought on record."
26. Upon discussing the entire medical evidence,
this Court finds that the defence has succeeded in raising
substantial doubt with regard to the genuineness and authenticity
of the entire injury report as well as the medical evidence
adduced in support of the same.
27. After having gone through the entire evidence
both oral and documentary, this Court is convinced that there
exists compelling reasons to doubt the evidence of the
prosecution witnesses, who have even claimed to be injured in
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the alleged incident. Their evidence is replete with
inconsistencies with regard to the very basic fact of treatment of
their injuries and the entire story of going to Banaras and
coming back to Bhabhua hospital. Prosecution witnesses have
given varied statements and from the evidence of so called
injured witness P.W.-4, it is gathered that from the Bhabua
Hospital the injured were taken to Banaras at 8:00 p.m. on the
date of occurrence and he has stated that only he and P.W. 5 had
been admitted in the hospital for treatment, whereas P.W. 6 had
been discharged on the same day. P.W.5, Guptnath Singh also
admits to have gained consciousness only in Banaras, on the
next day of occurrence, and his statement was recorded on the
third day of the occurrence at Bhabua Hospital. It thus appears
that both the witnesses P.W. 4 and P.W. 5 have supported the fact
that they were taken to hospital in Banaras for treatment on
01.02.1987
and brought back on 02.02.1987. However, there is
complete dearth of any documentary evidence in order to prove
that they received treatment at either of the two hospitals at
Bhabua or at Banaras. The injury report of the Bhabua hospital,
as stated earlier, merely refers to the existence of injuries and its
nature. No evidence has been adduced to shed any light on the
treatment that was given to the injured person. There is no iota
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of doubt on the proposition that the evidence of injured
witnesses are accorded special status and have to be kept at a
much higher pedestal as they have a greater evidentiary value.
It is also true that their testimony cannot be brushed aside or
discarded unless some very cogent or compelling circumstances
exist for doing so. This proposition has been clearly laid down in
the case of Abdul Sayed Vs. State of Madhya Pradesh reported
in (2010) 10 SCC 259. However, it has been held in the case of
Zainul Vs. State of Bihar reported in (2025) 6 BLJ 130 SC, that
before court accepts testimony of an injured witness, it has to be
satisfied that he is a truthful witness and had no reason to falsely
implicate accused persons. Reasonable doubt may also arise on
the truthfulness of such witnesses in cases where the parties are
at logger heads or are inimically disposed towards each other
and further gets aggravated in a situation when the case stands
supported only by related witnesses, being the family members
and no independent witness comes in support thereof. However,
the present case, strictly speaking, could be taken out of the
preview of considering the prosecution witnesses on a high
pedestal of being injured witnesses since the very existence of
injuries on the person of the prosecution witnesses is under
serious challenge and remains extremely shrouded in doubt.
Patna High Court CR. APP (SJ) No.377 of 2003 dt.06-02-2026
23/29
28. It is also to be considered that there are glaring
laches in investigation inasmuch as the Investigating Officer of
this case has not cared to collect any incriminating materials, the
pellets or trail of blood or blood stained clothes etc. which
would have been extremely essential to prove the prosecution
case. The absence of such incriminating materials, especially in
the background of the fact when the prosecution has tried to put-
forth a case of indiscriminate firing and several injuries being
caused to the injured persons with blood oozing out, would
definitely deal a fatal blow to the case of the prosecution. The
failure on the part of the Investigating Officer to collect any
objective evidence from the place of occurrence leads to the
further situation that the place of occurrence itself not being
proved. In the case of Munuwa vs State of U.P. reported in
(2023) 1 SCC 714 : 2022 SCC OnLine SC 1097, the
significance of collection of incriminating materials from the
place of occurrence, especially in a situation when several
rounds of firing have been made has been reiterated. For ready
reference, paras-24 and 25 of the said judgment is being quoted
hereunder:
“24. It is unnatural that not even
single drop of blood could be traced or
recovered from the chair or the floor where
Patna High Court CR. APP (SJ) No.377 of 2003 dt.06-02-2026
24/29the deceased and PW 6 were sitting,
casting a serious doubt about the veracity
of the prosecution’s story regarding the
place of the incident. It is common
knowledge that a place where a severe
bodily injury occurs, it naturally leaves a
trail of the incident [ In Meharaj Singh v.
State of U.P., (1994) 5 SCC 188 : 1994
SCC (Cri) 1391, this Court held : (SCC p.
197, para 13)”13. … The absence of any
blood in the field of Kirpal Singh as also
the absence of blood trail from the field of
Kirpal Singh to the place where the dead
body was found, as admitted by PW 8, also
suggests that the occurrence did not take
place in the manner suggested by the
prosecution and that the genesis of the
fight has been suppressed from the
court.“A similar view was taken in
Ramsewak v. State of M.P., (2004) 11 SCC
259, wherein it was held : (SCC pp. 265-
66, para 14)”14. … We also notice that
there is considerable doubt in regard to the
place of incident also. From the medical
evidence we notice that the deceased
suffered 3 major incised wounds leading to
the severance of the blood vessels and
amputation of his hand near the wrist and
the body in question was lying at the spot
till the police came which was nearly 4 to
Patna High Court CR. APP (SJ) No.377 of 2003 dt.06-02-2026
25/295 hours later but still the investigating
agency was unable to find any blood on the
spot. Of course, the prosecution has given
an explanation that after the incident in
question it had rained but even then it is
difficult to believe that even traces of blood
could not have been found on the soil in
spite of the rain. The absence of any such
material also supports the prosecution
case that the incident in question might not
have happened at the place of
incident.”(emphasis supplied)] . It is also
common for the prosecution to collect
proof of bloodstained earth, clothes, or
other materials, from where the incident
would have occurred.
25. On this aspect there is only a
tangential observation in evidence of PW
6, who stated that the deceased’s “injured
body part had been wrapped with
tehmand”. This statement fails to explain
the lack of any bloodstains at the crime
scene. This does not explain why the said
cloth, tehmand, was not produced by the
prosecution. Accordingly, we find that the
prosecution’s failure to explain recovery of
blood on the chair or the place where the
deceased was sitting when he was fired at
seven times is fatal. The non-production of
bloodstained clothes is equally fatal.”
Patna High Court CR. APP (SJ) No.377 of 2003 dt.06-02-2026
26/29
29. The glaring inconsistencies in the prosecution
version have thus been magnified in the absence of material
evidence in the form of weapons of crime, pellets and blood
trail etc.
30. The genesis of the case also does not get
proved as the prosecution’s case of entire incident having taken
place on the petty issue of the goats of the appellants being
taken by the informant to his house as they were grazing his
field remains unsubstantiated as the Investigating Officer has
not investigated this aspect and in absence of any investigation
with regard to the same, genesis of the occurrence also does not
get established. The prosecution has thus failed to offer any
explanation regarding the fact as to non-production and non-
seizure of a single pellet either retrieved from the body of the
deceased during the course of treatment or from the place of
occurrence. It has been held in several cases that even in a
situation when the pellets are said to have been retrieved from
the body the non-production of the chemical examination report
or non-examination of the maker of such report has also been
held to have adverse impact on the case of the prosecution.
However, in the case at hand, there is no question whatsoever of
any chemical examination being done as the pellets simply seem
Patna High Court CR. APP (SJ) No.377 of 2003 dt.06-02-2026
27/29
to have vanished and the prosecution has not been able to render
any explanation with regard to the same. In a case where there
are such serious lapses in investigation, the courts would have to
be circumspect in considering the other evidence available on
record. It is true that the defective investigation would not form
the basis to reject the prosecution evidence but in a case where
the evidence put forth by the prosecution is already of a weak
nature, investigational lapses become a vital consideration for
establishing the guilt of the accused as also establishing the
place and manner of occurrence. The point that is to be driven
home is that there can be no moral conviction on the basis of the
allegations made by the prosecution party if the same remains
unsupported by legally admissible evidence.
31. In the background of such facts and
circumstances, a reasonable doubt is raised in the mind of this
Court with respect to the genuineness of the entire prosecution
as against the appellants. It is the bounden duty of the Court to
ensure that the facts and evidence adduced by the prosecution
prove its case beyond all reasonable doubts. As submitted by the
learned amicus, the witnesses of the prosecution fall in the third
category of witnesses as carved out in the case of Vadivelu
Thevar (supra) being neither wholly reliable nor wholly
Patna High Court CR. APP (SJ) No.377 of 2003 dt.06-02-2026
28/29
unreliable and as such, Court has to be extremely circumspect to
look for corroboration in material particulars by reliable
testimony. Moreover, there is a long mental distance which
needs to be traversed between the theory ‘may be true’ and
‘must be true,’ which is to be covered by way of clear, cogent
and unimpeachable evidence produced by the prosecution before
condemning an accused as a convict. In the present case, the
said path has not been treaded by way of clear and cogent
evidence.
32. Thus, taking into account the gaping loopholes
in the prosecution case, which cannot be overlooked and in the
background of infirmities of the prosecution case, the appellants
are entitled to benefit of doubt. Taking an overall perspective of
the entire case emerging out of the totality of facts and
circumstances, I find that the prosecution has failed to prove the
charges against the appellants beyond all reasonable doubts.
Hence, it is a fit case for extending the benefit of doubt to the
appellants. Accordingly, the finding of conviction recorded by
the learned Trial Court is found not sustainable and requires
interference. Therefore, the judgment of conviction and order of
sentence dated 30.07.2003 passed by the Court of learned
1stAdditional Sessions Judge, Bhabua in Sessions Trial
Patna High Court CR. APP (SJ) No.377 of 2003 dt.06-02-2026
29/29
No.166/97 of 1987/1998, arising out of Bhabua (Sonhan) P.S.
Case No.29/87 is hereby set aside. As the appellants are already
on bail, hence they would be free from the liabilities of their bail
bonds.
33. Accordingly, the present appeal is allowed.
34. Before parting with the judgment, this Court
records its words of appreciation for Ms. Surya Nilambari for
ably assisting this Court as Amicus Curiae and the Patna High
Court Legal Services Committee is directed to pay remuneration
of Rs.12,000/- (Rupees Twelve Thousand) to her for her efforts
and the able assistance that she has provided for the proper
adjudication of the case.
(Soni Shrivastava, J)
Trivedi/-
AFR/NAFR AFR CAV DATE N/A Uploading Date 19.02.2026 Transmission Date 19.02.2026
