Patna High Court – Orders
Amber Imam Hashmi vs The State Of Bihar on 28 April, 2026
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.265 of 2026
Arising Out of PS. Case No.-58 Year-1994 Thana- BISHANPUR District- Darbhanga
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Amber Imam Hashmi S/O Late Nematullah @ Late Md Nematullah @
German R/o Vill.- Bassant, P.s- Bishanpur Distt. Darbhanga. Permanently
R .O- Mohalla- G.N.Ganj, P.S- Laheriasarai, Distt- Darbhanga
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Sanjay Singh, Sr. Advocate
Mr. Kedar Jha, Advocate
Mr. Rudrank Shivam Singh, Advocate
Mr. Ranvir Pratap Singh, Advocate
For the Informant : Mr. Madhukar Mohan, Advocate
For the State : Mr. Dilip Kumar Sinha, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE JUSTICE SMT. SONI SHRIVASTAVA
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
3 28-04-2026
Heard Mr. Sanjay Singh, learned Senior counsel for
the appellant, assisted by Mr. Kedar Jha, learned Advocate for
the appellant, Mr. Madhukar Mohan, learned counsel for the
informant and Mr. Dilip Kumar Sinha, learned Additional Public
Prosecutor for the State.
2. Records have been placed before this Court to
consider the prayer of the appellant for suspension of his
sentence and release on bail during the pendency of the appeal.
3. The sole appellant has been convicted vide
judgment dated 05.01.2026 and sentenced vide order dated
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31.01.2026 by the learned Additional Sessions Judge-III,
Darbhanga in Sessions Trial No. 326 of 1999, CIS No. 3038 of
2014, arising out of Bishanpur P.S. Case No. 58 of 1994 for the
offence under Sections 302/149 and 307/149 of Indian Penal
Code (hereinafter referred to as ‘IPC‘). He has been ordered to
undergo rigorous imprisonment for life with a fine of Rs.
5,00,000/- and in default of payment of fine, he has further been
ordered to undergo simple imprisonment for further one year for
offences under Section 302/149 of IPC. Further, the appellant
has been ordered to undergo rigorous imprisonment for 10 years
with a fine of Rs. 5,00,000/- and in default of payment of fine,
he has further been ordered to undergo simple imprisonment for
further one year for offences under Section 307/149 of IPC.
4. The prosecution case is based on the fardbeyan of
one Ram Pukar Chaudhary (PW-1) recorded on 09.08.1994 at
6:30 a.m. with regard to the occurrence which had taken place
on 08.08.1994 at about 7:00 p.m. The fardbeyan has been
recorded by the S.I. of Police in Darbhanga Medical College
Hospital in the unit of Dr. N.N. Jha. In his fardbeyan, the
informant alleged that when he along with villagers, namely,
Sanjit Kumar Chaudhary, Ravindra Kumar Chaudhary, Hari
Shankar Chaudhary, Ram Kripal Chaudhary, Sanjiv Kumar
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Chaudhary, Ashok Kumar Chaudhary, Pankaj Kumar Chaudhary
and Vinay Kumar Chaudhary went to graze cow and buffaloes
in ‘Badh’ and when they were returning at about 7 O’clock and
reached near east-south Bhinda of Gunsagar Pond to drink water
to their cattle, 25-30 people of Muslim community of village
Basant came near the pond, armed with traditional weapon and
gun, and surrounded the pond and began to take out cattle from
the pond and carried towards the village Basant, then the
informant along with villagers stood in front of their cattle, then
accused Kausar Imam Hashmi and Qumar Imam Hashmi, with
abusive word, ordered to kill all of them. Then, Amber Imam
Hashmi (appellant) and one Shakil Hashmi, with an intention to
kill, fired upon the informant and one Ram Kripal Chaudhary
respectively, due to which the informant received gun shot
injury and Ramkripal Chaudhary also received gun shot injury
and fell down moribund/dying at the place of occurrence.
Thereafter, accused, Sarbat Hashmi, Raja Hashmi, Akram Sabri,
Ballo Hashmi, Mobin Hashmi, Ansarat Hashmi, Anjum Hashmi,
Jasim Naddaf, Rab Nawaz and 10-12 were equipped with
gadasa, spears and gun, began to fire indiscriminately upon
informant and his villagers, due to which all sustained gun shot
injury and one of the villagers, namely, Kailashpati Chaudhary
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also sustained gun shot injury, while he was returning home. On
hulla and sound of gun fire, many villagers came and saw
running away the accused persons after firing. Informant
claimed that all accused gathered with gun, spears and farsa in
which ten persons had sustained firearm injury and out of which
one had died on the spot.
5. Learned Senior counsel for the appellant submits
that in this case large number of prosecution and defense
witnesses have been examined in course of trial. During
investigation, the police has verified the plea of alibi taken by
this appellant and had not sent him up for trial but the learned
Magistrate differed with the police report, took cognizance of
the offences and among other accused the appellant was also
summoned.
6. Learned Senior counsel submits that as per the
fardbeyan of the informant, this appellant is said to have fired
which caused injury to the informant, another accused Shakil
Hashmi fired which caused injury to Ramkripal Chaudhary and
Ramkripal Chaudhary fell down dying at the place of
occurrence. So far as allegation against other accused persons
are concerned, they are said to have fired upon the other injured
persons in this case.
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7. It is further submitted that in course of trial, the
informant (PW-1) has turned hostile. He has stated that he had
heard hulla from the eastern side of his house whereafter he
went towards Gunshar Pokhar and when he reached there firing
started in which he, Ravindra Kumar Chaudhary, Hari Shankar
Chaudhary, Vinay Chaudhary, Ashok Chaudhary, Kapil
Chaudhary, Kailashpati Chaudhary, Sanjiv Kumar Chaudhary,
and Sanjeet Chaudhary all suffered firearm injury. He had
suffered fire arm injury on thigh, whereafter he went to his
house from where he was taken to hospital. It is submitted that
in paragraph no.3 of his deposition PW-1 has stated that he had
not seen the person firing. This witness has been declared
hostile.
8. Learned Senior Counsel submits that in this case
altogether ten persons are said to have suffered fire arm injury,
out of them one person, whose name is mentioned in the F.I.R.
died immediately, thereafter, one more person died but the
details regarding his cause of death has not been brought on
record. Other eight persons have been found injured.
9. Learned Senior Counsel further submits that in
course of trial, the Investigating Officer has not been examined
which has caused serious prejudice to the appellant because in
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absence of I.O. the plea of ablibi could not be considered. The
defence could not get a chance to take contradictions.
10. Learned Senior counsel submits that the defence
had lodged a counter case in which the informant Shakil Hashmi
had taken a plea of private defence, he has stated that when the
prosecution side started firing then he had fired few shots from
his gun which he had later on surrendered. The plea of Shakil
Hashmi was that it was the prosecution side who was the
aggressors.
11. It is lastly submitted that this appellant is not
maintaining good health. He had uncontrolled diabetes and for
that reason he had some burning infection and chest pain
recently, therefore, he has been referred by Sri Krishna Medical
College and Hospital, Muzaffarpur to Patna Medical College
Hospital, Patna only yesterday. On this ground, it is submitted
that the appellant would deserve suspension of sentence and
release on bail during pendency of the appeal.
12. The prayer of the appellant has been opposed
by the learned counsel for the informant and learned Additional
Public Prosecutor for the State. It is submitted, at the outset, that
this appellant is named in the First Information Report, it is not
only the informant (PW-1), who has alleged that this appellant
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fired from his gun, in course of trial even as PW-1 has been
declared hostile, the other prosecution witnesses, particularly,
the injured witnesses, namely, PW-2, PW-3, PW-9, PW-10, PW-
12 and PW-13 all have stated about the presence of this
appellant and his active participation in the occurrence. PW-10,
who is one of the injured witness, has stated that on the order of
Kaushar Imam Hashmi to fire and kill everyone, this appellant
had fired which hit Ram Pukar Chaudhary. He has stated that
Kaushar Imam Hashmi and Amber Imam Hashmi (appellant)
both had fired that caused injuries to the companions of this
witness. This witness had suffered one shot at his head and the
another one on his thigh.
13. Learned counsel submits that from the pattern
of the cross-examination of the prosecution witnesses it would
appear that the defence has not questioned the place of
occurrence. The prosecution witnesses have given the
description of the occurrence, the manner and they are
consistent in their evidence.
14. Learned counsel further submits that earlier the
defence had taken a plea of self defence in the counter case but
the medical evidence on the record clearly belied the defence
case as the Doctors, who have prepared the injury reports, have
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deposed that the injuries caused to the injured witnesses were
charred and blackened. Learned counsel has pointed out from
the findings recorded in the judgment of the learned Trial Court
in paragraph-6.4 wherein the evidence of Doctors, PW-15 and
PW-16, have been discussed. The injuries were charred and
blackened which were caused from close distance. The fact that
those injuries were caused to ten persons by firearms and the
Doctor had found multiple foreign body pieces in the injury of
some of the injured witnesses, the plea of defence saying that
only the informant of the said case had fired from his gun
has not been believed by the learned Trial Court. The
counter case lodged by the defence has failed and the
prosecution side who were made accused in the said case have
been acquitted.
15. Relying upon the judgment of the Hon’ble
Supreme Court in the case of Rajesh Upadhayay vs. State of
Bihar & Anr. reported in 2025 INSC 1468, learned counsel for
the informant submits that in a case of present nature where all
the injured witnesses have stated about the presence of the
appellant with firearm, firing has been attributed to the appellant
and the place of occurrence as well as the manner of occurrence
have been duly proved, keeping in view the judgment of the
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Hon’ble Supreme Court, the appellant would not deserve
suspension of sentence and release on bail at this stage.
16. Having heard learned Senior Counsel for the
appellant, learned counsel for the informant and learned
Additional Public Prosecutor for the State as also on perusal of
the trial court records which we have, prima-facie, gone through
at this stage for purpose of consideration of the prayer of the
appellant, we have noticed that in this case the appellant is
named in the fardbeyan of the informant, who was one of the
injured witnesses, there is a specific statement in the fardbeyan
of the informant that the appellant had fired and that had hit
him, in course of trial the informant (PW-1) has turned hostile
but there are large number of witnesses such as, PW-2, PW-3,
PW-9, PW-10, PW-12 and PW-13, who are all injured and have
stated about the presence of this appellant and his active
participation in the occurrence in which ten persons had
received firearm injuries and out of them one died on the spot
and as informed to this Court, another one had died after two
months, the learned Senior Counsel for the appellant has
although made efforts to take this Court through the deposition
of the witnesses and has submitted that non-examination of the
I.O. has caused serious prejudice to the defence of the appellant,
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we are of the considered opinion that this plea may only be
considered at the stage of final hearing of the appeal. The
appellant is incarceration for three months only. In view of the
judgment of the Hon’ble Supreme Court in the case of
Omprakash Sahni vs. Jai Shankar Chaudhary and Anr.
reported in (2023) 6 SCC 123 and in the case of Janardan Ray
vs. The State of Bihar and Anr. reported in 2025 SCC Online
SC 3191 and Rajesh Upadhayay (supra), this Court cannot go
into a threadbare discussions into the evidences. The appellant
has been convicted for an offence under Section 302/149 of IPC
as also under Section 307/149 of IPC, therefore, unless some
palpable materials are prima-facie present on the record, he
would not deserve suspension of sentence and grant of bail. In
our opinion, the prayer for suspension of sentence and release
on bail is liable to the rejected.
17. As a matter of last effort, learned Senior
Counsel for the appellant has submitted before this Court that
the appellant is not maintaining good health, there is no affidavit
before this Court with sufficient materials to take a view on it.
All that we can say from the copy of the Patna Medical College
Hospital, Patna prescription is that the appellant has Diabetes
mellitus of type-2 and no other serious ailment is mentioned in
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the paper placed before us. Accordingly, prayer is refused.
18. It is clarified that the observations made
hereinabove are only prima-facie and tentative in nature for
purpose of consideration of prayer for bail of the appellant which
would not cause prejudice to either of the parties.
19. List this appeal for hearing on its turn.
(Rajeev Ranjan Prasad, J)
(Soni Shrivastava, J)
harsh/anand/-
U T
