Nannku @ Nanku Sah vs The State Of Bihar on 10 March, 2026

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    Patna High Court

    Nannku @ Nanku Sah vs The State Of Bihar on 10 March, 2026

    Author: Purnendu Singh

    Bench: Purnendu Singh

             IN THE HIGH COURT OF JUDICATURE AT PATNA
                           CRIMINAL APPEAL (SJ) No.7 of 2011
         ======================================================
    1.    NANNKU @ NANKU SAH Late Jangali Sah R/O,Vill.-Selar Kala, P.S.-
          Fulwariya, Dist.Gopalganj
    2.   Manager Sah, Son of Late Jangali Sah, R/O Vill.-Selar Kala, P.S.-Fulwariya,
         Dist.- Gopalganj
    3.   Kanhaiya Sah @ Kanhaiya, S/o Dwarika Sah, R/O Vill.-Selar Kala, P.S.-
         Fulwariya, Dist.-Gopalganj.
    
                                                                       ... ... Appellant/s
                                              Versus
         The State of Bihar
    
                                                   ... ... Respondent/s
         ======================================================
         Appearance :
         For the Appellant/s      :      Mr.Rudra Pratap Singh, Amicus curiae
         For the Respondent/s     :      Mr.S.N.Prasad, APP.
         ======================================================
         CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
                          ORAL JUDGMENT
          Date : 10-03-2026
                   The appeal was admitted on 17.01.2011, on which
    
          date, the provisional bail granted to the appellants was
    
          confirmed and since then no one has appeared on behalf of the
    
          appellants in spite of the adjournments granted by this Court on
    
          19.01.2017

    , 27.03.2025, 03.07.2025, 17.07.2025 and

    03.02.2026.

    SPONSORED

    2. Taking into consideration the conduct of the

    appellants and the fact that this Court is clogged with old

    criminal appeals, this court appoints Mr. Rudra Pratap Singh as

    Amicus Curiae .

    FACTS OF THE CASE

    3. The present appeal has been filed under Section 374
    Patna High Court CR. APP (SJ) No.7 of 2011 dt.10-03-2026
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    (2) of the Code of Criminal Procedure challenging the judgment

    of conviction and order of sentence dated 02.12.2010 passed by

    the learned Additional District and Sessions Judge cum Fast

    Track Court-I, Gopalganj in Sessions Case No.

    229/2005/155/2009, arising out of Fulwariya P.S. Case No. 09 of

    2002, G.R. No. 228/02 whereby the learned trial court convicted

    the appellants for the offence punishable under Section 323/34

    of the Indian Penal Code and sentenced them to undergo S.I. for

    9 months.

    4. Being aggrieved and dissatisfied with the aforesaid

    judgment of conviction and order of sentence, the appellants

    have preferred the present appeal before this Court. The

    appellants have assailed the impugned judgment primarily on

    the ground that the learned trial court failed to appreciate the

    evidence available on record in its proper perspective and has

    wrongly recorded the conviction of the appellants.

    5. The prosecution case, in brief, is that Fulwariya P.S.

    Case No. 9/2002 was instituted on the basis of a written report

    submitted by the informant, Raghubar Sah. In his report, the

    informant alleged that at about 4:00 P.M., while he was present

    at his Bathan, all the accused persons named in the F.I.R. arrived

    there, began abusing him, and questioned why he had sold the
    Patna High Court CR. APP (SJ) No.7 of 2011 dt.10-03-2026
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    land. Thereafter, the accused persons allegedly started assaulting

    the informant with lathis. During the occurrence, accused

    Kanaiha Sah caught hold of the informant and instigated others

    to kill him, whereupon Jangali Sah and Nanhaku Sah allegedly

    assaulted the informant on the head, as a result of which he

    sustained injuries on his head and his left hand was fractured.

    The alleged cause of the occurrence was stated to be a dispute

    relating to land.

    6. On the basis of the written report of the informant,

    Fulwariya P.S. Case No.9 of 2002 was instituted under Sections

    341, 323, 325 and 307/34 of the Indian Penal Code. After

    investigation, the police submitted charge sheet under Sections

    341, 323, 325 and 307/34 of the Indian Penal Code. The learned

    Magistrate took cognizance of the offence and committed the

    case to the court of sessions. Charge against the accused persons

    was framed under Sections 341, 323, 325 and 307/34 of the

    Indian Penal Code. Charges were read over and explained to

    them by the Court to which they pleaded not guilty and claimed

    to be tried.

    ARGUMENT ON BEHALF OF APPELLANT

    7. Learned Amicus curiae appearing on behalf of the

    appellants submitted that the impugned judgment of conviction
    Patna High Court CR. APP (SJ) No.7 of 2011 dt.10-03-2026
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    passed by the learned trial court is wholly illegal, perverse and

    not sustainable in the eyes of law as the same has been passed

    without proper appreciation of the evidence available on record.

    It is submitted that the alleged occurrence is said to have taken

    place due to a land dispute between the parties which clearly

    indicates that the appellants have been falsely implicated in the

    present case on account of previous enmity. It is further

    submitted that the prosecution witnesses are interested witnesses

    and their evidence suffers from material contradictions and

    inconsistencies. Moreover, two prosecution witnesses namely

    Mansi Mian and Lalan Rai did not support the prosecution case

    and were declared hostile, which creates serious doubt about the

    credibility of the prosecution story.

    8. Learned counsel further submitted that the

    prosecution has also failed to prove the injuries in accordance

    with law as the injury report was proved only through a formal

    witness and the doctor who allegedly examined the informant

    was not examined before the court, thereby depriving the

    appellants of the opportunity to cross-examine the medical

    officer regarding the nature and cause of injuries. It is also

    submitted that there is no specific and reliable evidence

    regarding the overt act of each of the appellants and the
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    evidence on record is vague and omnibus in nature. The learned

    trial court itself did not find sufficient evidence to sustain the

    charges under Sections 341, 325 and 307/34 IPC and ultimately

    convicted the appellants only under Section 323/34 IPC, which

    clearly shows that the prosecution case was not proved in its

    entirety. Therefore, the appellants are entitled to the benefit of

    doubt and the impugned judgment and order of conviction are

    liable to be set aside.

    ARGUMENT ON BEHALF OF THE STATE

    9. Per contra, learned APP appearing for the State

    while opposing the appeal submitted that the learned District

    court, after considering all the evidences on record and exhibits

    submitted on behalf of the parties during the course of trial, has

    rightly convicted the appellants for said offences.

    ANALYSIS AND CONCLUSION

    10. I have perused the lower court records and

    proceedings and also taken note of the argument made by

    learned Amicus Curiae and learned APP for the State.

    11. The learned trial court, on the basis of materials as

    collected during the course of investigation, passed the

    Judgment of Conviction dated 02.12.2010 for the offences under

    Section 323/34 of the IPC.

    Patna High Court CR. APP (SJ) No.7 of 2011 dt.10-03-2026
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    12. During the trial, the prosecution has examined

    altogether seven witnesses, namely:

    (i) P.W.-1 – Ramdeo Sah

    (ii) P.W.-2 – Shyamdeo Sah

    (iii) P.W.-3 – Subedar Mian

    (iv) P.W.-4 – Mansi Mian

    (v) P.W.-5 – Lalan Rai

    (vi) P.W.-6 – Umesh Rai

    (vii) P.W.-7- Ainul Huque

    13. The prosecution has also relied upon following

    documents exhibited during the course of trial:-

    (i) Injury Report (Exhibit-1)

    (ii) Signature of Officer in Charge Fulwariya P.S.

    (Exhibit-2).

    14. On the basis of materials surfaced during the

    trial, the appellants/accused were examined under Section 313

    of the Cr.PC by putting incriminating circumstances/evidences

    surfaced against them, which they denied and show their

    complete innocence.

    15. It would be apposite to discuss the

    oral/documentary evidences as available on record to re-

    appreciate the evidences for just and proper disposal of the
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    present appeal.

    16. It would be appropriate to reproduce the

    provisions of Section 323/34 of the IPC for the sake of

    convenience and better understanding of the facts, which are as

    under:

    “323. Punishment for voluntarily causing hurt.–
    Whoever, except in the case provided for by section
    334
    , voluntarily causes hurt, shall be punished with
    imprisonment of either description for a term which
    may extend to one year, or with fine which may
    extend to one thousand rupees, or with both.

    17. Having perused the materials available on

    record, the sole ground for interfering with the impugned

    judgment is that the appellants were roped in a false case due to

    enmity with the informant and the material witnesses like the

    informant, investigating officer and the medical officer have not

    been examined to corroborate the prosecution case. The

    appellants were all along on bail during the whole period of trial

    and had never misused the privilege of bail granted in their

    favour.

    18. The records disclose that neither the Investigating

    Officer nor the Medical Officer was examined during the course

    of trial. Undoubtedly, both are material witnesses, the former

    being essential to explain the manner in which the investigation

    was conducted and the steps taken during investigation, and the
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    latter to prove the medical evidence relating to the nature and

    cause of injuries. Their examination also affords the defence an

    opportunity to test the fairness of the investigation and the

    medical findings through cross-examination. However, it is well

    settled that the mere non-examination of the Investigating

    Officer or the Medical Officer does not ipso facto vitiate the

    prosecution case. The effect of such omission has to be assessed

    in the facts and circumstances of each case, particularly with

    regard to whether any prejudice has been caused to the accused;

    and where the ocular and other substantive evidence is otherwise

    found to be cogent, reliable and trustworthy, the prosecution

    case cannot be rejected on that ground alone. In this regard,

    refernce can be drawn from the judgment passed by the Apex

    Court in para no. 18 in the case of Rajesh Patel v. State of

    Jharkhand, reported in (2013) 3 SCC 791 is reproduced

    hereinafter:

    “18. Further, neither the doctor nor the IO has been
    examined before the trial court to prove the
    prosecution case. The appellant was right in
    bringing to the notice of the trial court as well as the
    High Court that the non-examination of the
    aforesaid two important witnesses in the case has
    prejudiced the case of the appellant for the reason
    that if the doctor would have been examined he
    could have elicited evidence about any injury
    sustained by the prosecutrix on her private part or
    any other part of her body and also the nature of
    hymen layer, etc. so as to corroborate the story of
    the prosecution that the prosecutrix suffered
    unbearable pain while the appellant committed rape
    on her. The non-examination of the doctor who had
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    examined her after 12 days of the occurrence has
    not prejudiced the case of the defence for the reason
    that the prosecutrix was examined after 12 days of
    the offence alleged to have been committed by the
    appellant because by that time the sign of rape must
    have disappeared. Even if it was presumed that the
    hymen of the victim was found ruptured and no
    injury was found on her private part or any other
    part of her body, finding of such rupture of hymen
    may be for several reasons in the present age when
    the prosecutrix was a working girl and that she was
    not leading an idle life inside the four walls of her
    home. The said reasoning assigned by the High
    Court is totally erroneous in law.”

    19. I find that the trial court has failed to consider

    that the informant was the eye witness who has alleged that

    incidence has taken place in his presence while he has failed to

    examine himself in course of trial. As a result of vital infirmity

    in the impugned judgment, it appears that the prosecution has

    miserably failed to establish the charges levelled against the

    appellants/accused during the trial.

    20. Accordingly, the present appeal is allowed.

    21. The impugned judgment of conviction and

    sentence dated 02.12.2010, passed by learned Additional

    District and Sessions Judge cum Fast Track Court-I, Gopalganj

    in Sessions Case No. 229/2005/155/2009, arising out of

    Fulwariya P.S. Case No. 09 of 2002, G.R. No. 228/02 is hereby

    set aside. Consequently, the above-named appellants/accused

    are acquitted from all the charges levelled against them. Since

    the appellants are on bail, as such, they are discharged from the
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    liability of their bail bonds. The fine deposited by the

    appellants, if any, shall be refunded to them.

    22. The Patna High Court, Legal Services Committee

    is, hereby, directed to pay a sum of Rs. 5,000/- (Rupees Five

    Thousand) to Mr. Rudra Pratap Singh, learned Amicus Curiae,

    as consolidated fee, for rendering his valuable professional

    service for disposal of the present appeal.

    23. Office is directed to send back the lower court

    records along with a copy of the judgment to the learned District

    Court forthwith.

    (Purnendu Singh, J)

    mantreshwar/-

    AFR/NAFR                NAFR
    CAV DATE                NA
    Uploading Date          16.03.2026
    Transmission Date       16.03.2026
     



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