Patna High Court
Sukhari Ram And Ors vs The State Of Bihar on 30 April, 2026
Author: Purnendu Singh
Bench: Purnendu Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.57 of 2012
Arising Out of PS. Case No.-15 Year-2003 Thana- DURGAWATI District- Kaimur (Bhabua)
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1. Sukhari Ram son of Khobhari Ram.
2. Rajendra Ram son of Khobhari Ram.
3. Dularchand Ram son of Kishori Ram
All R/O Village- Khamindoura, P.S- Durgawati, Distt- Kaimur At Bhabua
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (SJ) No. 95 of 2012
Arising Out of PS. Case No.-15 Year-2003 Thana- DURGAWATI District- Kaimur (Bhabua)
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Mahipat Ram, S/O Jokhu Ram, resident of village- Khamindoura, P.S.-
Durgawati, District- Kaimur Bhabua
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (SJ) No. 57 of 2012)
For the Appellant/s : Mr. Ravi Shankar Sahay, Advocate
Mr. Abhishek Singh Rathour, Advocate
For the Respondent/s : Mr. Abhay Kumar, A.P.P.
(In CRIMINAL APPEAL (SJ) No. 95 of 2012)
For the Appellant/s : Mr. Ravi Shankar Sahay, Advocate
Mr. Abhishek Singh Rathour, Advocate
For the Respondent/s : Mr. Abhay Kumar, A.P.P.
======================================================
CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
CAV JUDGMENT
Date : 30-04-2026
Heard Mr. Ravi Shankar Sahay, learned counsel for
the appellants and Mr. Abhay Kumar, learned APP for the State.
Patna High Court CR. APP (SJ) No.57 of 2012 dt.30-04-2026
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2. The appellants have preferred the present criminal
appeals against the judgment dated 17-01-2012 and order of
sentence dated 21-01-2012 passed in S.Tr. No. 118/2013 of
2003/2007 (arising out of Durgawati P.S. Case No. 15/2003) by
learned 1st Addl. Sessions Judge, Kaimur at Bhabua, whereby,
the learned trial court has convicted the appellants under Section
307/34 and 323 of the Indian Penal Code and sentenced them to
undergo Rigorous Imprisonment for 10 years (for section 307 of
IPC) and further these three appellants were also sentenced to
undergo Rigorous Imprisonment for 1 years (for section 323 of
IPC).
3. The appellants have assailed the impugned
judgment primarily on the ground that the learned trial court has
failed to appreciate the evidence available on record in its
proper perspective and has erred in recording the conviction of
the appellants.
BRIEF FACTS OF THE CASE
4. The case of the prosecution, in brief, is that on
12.02.2003
at about 21:30 hours, the informant, Chhabilal Ram,
was returning to his house from Durgawati Bazaar. When he
reached near a well situated close to the house of Khobhari Ram
in village Khaminaura, the accused persons, namely Rajendra
Patna High Court CR. APP (SJ) No.57 of 2012 dt.30-04-2026
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Ram, Dularchand Ram, Sukhari Ram and Mahipat Ram,
allegedly surrounded him and, on account of previous enmity,
formed an unlawful assembly and assaulted him. It is further
alleged that during the course of the assault, accused Mahipat
Ram dealt a lathi blow on the head of the informant, causing
injury as a result of which he fell down and raised alarm. Upon
hearing the alarm, nearby persons reached the place of
occurrence, whereupon the accused persons fled away.
Thereafter, the injured was taken for treatment by his nephew,
Om Prakash Ram.
ARGUMENT ON BEHALF OF THE APPELLANTS
5. Learned counsel appearing on behalf of the
appellants submitted that the impugned judgment and order
dated 17.01.2012/ 21.01.2012 passed by Sri Rudra Pratap Singh,
1st Additional Sessions Judge, Kaimur at Bhabua, in S.T. No.
118/13 of 2003/07, whereby the appellants were convicted for
offences under Sections 307/34 and 323 of the IPC and
sentenced to 10 years and 1 year rigorous imprisonment
respectively (to run concurrently), is bad in law and on facts,
and is liable to be set aside. The sole eyewitness to the alleged
assault, P.W. 2, is none other than the nephew of the informant,
rendering his testimony interested and unreliable. P.W. 1 was
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declared hostile, and P.W. 5, the informant himself, admitted in
his deposition that the assault was committed solely by Mahipal
Ram. The witnesses P.W. 3, 6, and 7, being close relatives of the
informant, admitted the existence of prior enmity, giving rise to
a strong inference of false implication.
6. Learned counsel further submitted that the
Investigating Officer (P.W. 8) conceded that no signs of violence
were found at the place of occurrence, no blood-stained articles
were recovered, and no proper source of identification was
established. The appellants admittedly did not physically touch
the victim, and at best could only be characterized as instigators,
for which the sentence of 10 years Rigorous Imprisonment is
grossly disproportionate and harsh. The trial court failed to
appreciate the material contradictions in the prosecution
evidence, failed to consider the applicability of Section 360
Cr.P.C. inasmuch as the appellants were first-time offenders who
had remained on bail throughout without any previous
conviction, and failed to consider the absence of any intention
on the part of the appellants to kill the victim.
ARGUMENT ON BEHALF OF THE STATE
7. Per Contra, learned APP appearing for the State while
opposing the appeal submitted that the learned District court,
Patna High Court CR. APP (SJ) No.57 of 2012 dt.30-04-2026
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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
8. Heard the parties.
9. I have perused the lower court records and
proceedings and also taken note of the arguments canvassed by
learned counsel appearing on behalf of the parties.
10. With reference to the aforesaid rival legal
contention urged on behalf of the parties, I have carefully
examined the case to find out whether the impugned judgment
warrants interference by this Court on the charge levelled
against the accused/appellants under Sections 307/34 and 323 of
IPC.
11. During the trial, the prosecution has examined
altogether eight witnesses, namely:
(i). P.W.1 – Ghuna Ram (Hostile)
(ii). P.W.2 – Om Prakash Ram
(iii). P.W.3 – Bikrama Ram
(iv). P.W.4 – Dr. Vinod Kumar Kashyap
(v). P.W.5 – Chhabilal Ram (Informant)
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(vi). P.W.6 – Surendra Ram
(vii). P.W.7- Nibulal Prasad
(viii). P.W.8 – Daroga Rai
12. The prosecution has also relied upon following
documents exhibited during the course of trial:
(i) (Exhibit-1) – Signature of Om Prakash Ram on
the fardbeyan.
(ii) (Exhibit-1/1) – Signature of Chhabilal Ram on
the fardbeyan.
(iii) (Exhibit-2) – Injury report of Chhabilal Ram
(iv) (Exhibit-2/1) – Another injury report of Chhabilal
Ram
13. From the perusal of records, I proceed to analyse
the statements of the prosecution witnesses whether they have
supported the prosecution case.
(i) P.W.1- Ghuna Ram, has been declared hostile by
the prosecution as he has not supported the prosecution case in
material particulars.
(ii) P.W.2- Om Prakash Ram, He is the nephew of the
informant, Chhabilal Ram, he supported the prosecution case in
his examination-in-chief. His signature on the fardebeyan was
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place of occurrence, the accused persons had already fled. He
also noted that the incident occurred on a dark night.
(iii) P.W.3.- Bikrama Ram, He testified that the
informant told him directly that Mahipat Ram had assaulted him
on the head with a lathi. He deposed that he saw the informant’s
head was cracked and blood was oozing out. In paragraph 9, he
claimed there was no previous enmity between the accused
persons and the informant.
(iv) P.W.4.- Dr. Vinod Kumar Kashyap, he found a
lacerated wound on the fronto-parietal region with bleeding
from the nose. Based on the report, he found a mildly depressed
communicated fracture of the right basi-frontal with a small
extra-dural haematoma. He classified the injuries as grievous
and dangerous to life, caused by a hard and blunt substance. He
admitted that the injuries could potentially be caused by falling
on a hard stone. He also noted that he did not take the signature
or thumb impression of the injured on the report.
(v) P.W.5. – Chhabilal Ram (Informant) The informant
and victim in the case. He supported the facts of the prosecution
case as originally stated in his fardebeyan. His signature on the
fardebeyan was marked as Exhibit 1/1. He admitted there was
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was a dark night and he had turned off his motorcycle lights. He
denied the defense suggestion that his injury resulted from
falling into a drain.
(vi) P.W.6. – Surendra Ram, he testified to seeing the
informant in an injured and unconscious state, with his head
drenched in blood. He admitted he was sleeping in his house at
the time of the occurrence and was only informed of the
incident later that night. He denied the defense theory that the
informant fell into a drain.
(vii) P.W.7. – Nibulal Prasad, he went to the place of
occurrence after hearing a “hulla” (commotion) and found the
informant unconscious and injured. He stated in cross-
examination that Chhabilal Ram is his brother by village
relationship. He admitted he was sleeping when the incident
occurred. In paragraph 5, he deposed that no previous enmity
existed between the informant and the accused.
(viii) P.W.8. – Daroga Rai, he Investigating Officer
(I.O.) of the case. He recorded the fardebeyan and identified the
place of occurrence near a well in village Khaminaura. He
admitted he did not record statements from the accused or
nearby residents. He did not find motorcycle tracks on the road,
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nor did he collect blood-drenched clothes or samples from the
scene.
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 him, which they denied and showed their
complete innocence.
15. It would be appropriate to reproduce the
provisions of Sections 307/34 and 323 of I.P.C. for the sake of
convenience and better understanding of the facts, which are as
under:-
“307. Attempt to murder.–
Whoever does any act with such intention or knowledge,
and under such circumstances that, if he by that act caused
death, he would be guilty of murder, shall be punished with
imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine; and if
hurt is caused to any person by such act, the offender shall
be liable either to imprisonment for life, or to such
punishment as is hereinbefore mentioned. Attempts by life
convicts.– When any person offending under this section is
under sentence of imprisonment for life, he may, if hurt is
caused, be punished with death.
Illustrations
(a) A shoots at Z with intention to kill him, under such
circumstances that, if death ensued. A would be guilty of
murder. A is liable to punishment under this section.
(b) A, with the intention of causing the death of a child of
tender years, exposes it in a desert place. A has committed
the offence defined by this section, though the death of the
child does not ensue.
(c) A, intending to murder Z, buys a gun and loads it. A has
not yet committed the offence. A fires the gun at Z. He has
committed the offence defined in this section, and if by such
Patna High Court CR. APP (SJ) No.57 of 2012 dt.30-04-2026
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by the latter part of the first paragraph of this section.
(d) A, intending to murder Z by poison, purchases poison
and mixes the same with food which remains in A’s keeping;
A has not yet committed the offence defined in this section.
A places the food on Z’s table or delivers it to Z’s servant to
place it on Z’s table. A has committed the offence defined in
this section.
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.”
16. The record reveals that P.W.1 – Ghuna Ram
has been declared hostile during trial as he has not supported the
prosecution case on material particulars. In absence of any
reliable and independent corroboration from other prosecution
witnesses, the testimony of this witness loses its evidentiary
value for the purpose of establishing the guilt of the
accused/appellants. Accordingly, the evidence of P.W.1 is not of
much assistance to the prosecution case.
17. The prosecution case substantially rests upon
the testimonies of P.W.2 – Om Prakash Ram and P.W.5 –
Chhabilal Ram (informant), with limited support from P.W.3
– Bikrama Ram, while P.W.1 – Ghuna Ram has not supported
the prosecution case and has been declared hostile, and P.W.6 –
Surendra Ram and P.W.7 – Nibulal Prasad do not provide
any direct evidence of the occurrence, being post-occurrence
Patna High Court CR. APP (SJ) No.57 of 2012 dt.30-04-2026
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witnesses. The testimony of the material witnesses attributes
specific overt acts mainly against accused Mahipat Ram;
however, their version is not free from inconsistencies,
particularly with regard to the manner of occurrence, visibility
at the place of occurrence in a dark night, and the presence or
absence of prior enmity. Furthermore, the evidence suffers from
infirmities in investigation, as reflected from the testimony of
P.W.8 – Daroga Rai (I.O.), who has admitted not examining
independent witnesses and not collecting material evidence
from the place of occurrence. In such circumstances, the
prosecution version does not inspire full confidence for
sustaining the conviction of the accused/appellants.
18. The medical evidence of P.W.4 – Dr. Vinod
Kumar Kashyap indicates that the informant sustained a
lacerated wound on the head along with a fracture, which has
been opined to be grievous and caused by a hard and blunt
substance; however, the doctor has also admitted that such
injuries could be caused by a fall on a hard surface, thereby not
fully ruling out an alternative mode of injury and weakening the
certainty of the prosecution version. Furthermore, independent
witnesses have either not supported the prosecution case or are
not eyewitnesses to the occurrence, inasmuch as P.W.1 –
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Ghuna Ram has been declared hostile, while P.W.6 –
Surendra Ram and P.W.7 – Nibulal Prasad are admittedly
post-occurrence witnesses. It is also evident that the case arises
out of prior enmity between the parties, and the occurrence is
alleged to have taken place in a dark night, which raises doubt
regarding identification of the assailants. In such circumstances,
the possibility of exaggeration and false implication cannot be
ruled out, and the prosecution has failed to establish, beyond
reasonable doubt, the common intention and specific
involvement of all the accused persons.
19. It is well settled that an attempt to commit murder
must be clearly distinguished from a mere intention to commit
the offence or from acts that amount only to preparation for its
commission. The law recognizes that the existence of a guilty
intention alone is not sufficient to constitute an attempt. There
must be something more than planning or arranging the means
to commit the crime. Therefore, in order to secure a conviction
under Section 307 of the Indian Penal Code, the prosecution
must prove the presence of a definite intention or knowledge to
cause death, accompanied by some overt act that directly moves
towards the execution of that intention. In other words, the
accused must not only possess the intention to commit murder
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but must also perform an act that clearly demonstrates the
commencement of the offence.
20. The Apex Court laid down the litmus test for
determination of nature of offence in Pulicherla Nagaraju v.
State of A.P. reported in (2007) 1 SCC (Cri) 500. In the facts
and circumstances of a particular case, the Court needs to decide
the pivotal question of existence of intention with care and
caution. The following factors needs to be examined:
“(i) nature of the weapon used;
(ii)whether the weapon was carried by the accused or
was picked up from the spot;
(iii) whether the blow is aimed at a vital part of the body;
(iv) the amount of force employed in causing injury;
(v) whether the act was in the course of sudden quarrel or
sudden fight or free for all fight;
(vi) whether the incident occurs by chance or whether
there was any premeditation;
(vii) whether there was any prior enmity or whether the
deceased was a stranger;
(viii)whether there was any grave and sudden
provocation, and if so, the cause for such provocation;
(ix) whether it was in the heat of passion;
(x) whether the person inflicting the injury has taken
undue advantage or has acted in a cruel and unusual
manner;
(xi) whether the accused dealt a single blow or several
blows.”
21. The similar question came up before the Supreme
Court in the case of Joseph v. State of Kerala, reported in 1995
SCC (Cri) 165 has observed in para 3 which is reproduced
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hereinafter:
“3. In this appeal the learned
counsel for the appellant submits that the
intention to cause the injury which was found
sufficient to cause the death in the ordinary
course of the nature was not established. In
support of this submission he relied on the
circumstances namely that the whole incident
took place because of a trivial incident which
resulted in a quarrel and that the weapon
used was only a lathi and in the
circumstances it cannot be said that the
accused intended to cause the death by
inflicting that particular injury which
objectively was proved by the medical
evidence to be sufficient in the ordinary
course of nature to cause death. In other
words he submits that clause 3rdly of Section
300 IPC is not attracted in this case. We find
considerable force in the submission. The
weapon used is not a deadly weapon as
rightly contended by the learned counsel. The
whole occurrence was a result of a trivial
incident and in those circumstances the
accused dealt two blows on the head with a
lathi, therefore, it cannot be stated that he
intended to cause the injury which is
sufficient (sic). At the most it can be said that
by inflicting such injuries he had knowledge
that he was likely to cause the death. In
which case the offence committed by him
would be culpable homicide not amounting
to murder. We accordingly set aside the
conviction of the appellant under Section 302
IPC and the sentence of imprisonment for life
awarded thereunder. Instead we convict the
appellant under Section 304 Part II IPC and
sentence him to five years’ RI.”
22.The judgment of Joseph (supra) was referred
by the Apex Court in the case of Jugatram Vs. State of
Chhattisgarh, reported in (2020) 9 SCC 520.
23. Further to sustain a conviction under Section 307
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IPC, the Apex Court in the case of Sivamani v. State, reported
in, 2023 SCC OnLine SC 1581, in paragraph no. 9 has held as
under:
” 9. In State of Madhya Pradesh v.
Saleem, (2005) 5 SCC 554, the Court held that to
sustain a conviction under Section 307, IPC, it was
not necessary that a bodily injury capable of
resulting in death should have been inflicted. As
such, non-conviction under Section 307, IPC on the
premise only that simple injury was inflicted does
not follow as a matter of course. In the same
judgment, it was pointed out that ‘…The court has
to see whether the act, irrespective of its result, was
done with the intention or knowledge and under
circumstances mentioned in the section.’ The
position that because a fatal injury was not
sustained alone does not dislodge Section 307, IPC
conviction has been reiterated in Jage Ram v. State
of Haryana, (2015) 11 SCC 366 and State of
Madhya Pradesh v. Kanha, (2019) 3 SCC 605. Yet,
in Jage Ram (supra) and Kanha (supra), it was
observed that while grievous or life-threatening
injury was not necessary to maintain a conviction
under Section 307, IPC, ‘The intention of the
accused can be ascertained from the actual injury,
if any, as well as from surrounding circumstances.
Among other things, the nature of the weapon used
and the severity of the blows inflicted can be
considered to infer intent.”
24. Admittedly, from the prosecution case itself, it
transpires that the alleged occurrence arose out of previous
enmity between the parties and is stated to have taken place
suddenly at night, without any clear evidence of premeditation
or prior meeting of minds, the incident having occurred in the
course of a sudden confrontation. Further, the prosecution
evidence suffers from material infirmities as the case primarily
rests upon the testimonies of P.W.2 – Om Prakash Ram and
P.W.5 – Chhabilal Ram (informant), with limited support
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from P.W.3 – Bikrama Ram, whose versions are not wholly
consistent on material particulars, particularly with regard to the
manner of occurrence, visibility due to darkness, and the role
attributed to the accused persons, while independent witnesses
do not lend reliable support inasmuch as P.W.1 – Ghuna Ram
has turned hostile and P.W.6 – Surendra Ram and P.W.7 –
Nibulal Prasad are not eyewitnesses to the occurrence.
Moreover, the medical evidence of P.W.4 – Dr. Vinod Kumar
Kashyap, though indicating a grievous head injury caused by a
hard and blunt substance, also admits the possibility of such
injury being caused by a fall on a hard surface, thereby not
conclusively supporting the prosecution version. When
considered along with the admitted background of prior enmity
and the infirmities in investigation, the cumulative effect of
these circumstances creates serious doubt regarding the manner
of occurrence and the specific involvement of the accused
persons, thereby rendering the charge under Section 307 of the
Indian Penal Code unsustainable.
25. I find that the facts of the present case are
squarely covered by the judgment passed by the Apex Court in
case of Sivamani (supra) and in view of the aforesaid
discussion of factual and legal aspects, it emerges that the
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alleged occurrence took place in a sudden manner on account of
prior enmity between the parties and without any clear
premeditation or prior meeting of minds of the accused persons.
The nature of the incident, the surrounding circumstances, and
the medical evidence, particularly the testimony of P.W.4 – Dr.
Vinod Kumar Kashyap, indicate that although the informant
sustained a head injury opined to be grievous in nature, the same
has been attributed to a hard and blunt substance and the doctor
has also admitted the possibility of such injury being caused by
a fall on a hard surface, thereby creating doubt regarding the
manner of assault. In the backdrop of inconsistent testimonies of
the material witnesses, lack of reliable independent
corroboration, and infirmities in investigation, the evidence on
record does not conclusively establish the requisite intention or
knowledge to cause death so as to attract the provisions of
Section 307 of the Indian Penal Code. Rather, the materials on
record, at best, indicate an act of causing hurt by use of a blunt
object, and thus, this Court is of the considered opinion that the
offence under Section 307 IPC is not made out and the
conviction, if any, can be sustained only for a lesser offence in
accordance with law. The learned trial court has rightly
appreciated the evidence in convicting the appellants under
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Section 323 of the Indian Penal Code, particularly in view of the
injury reports showing injuries caused by hard and blunt
substance.
26. In the background of the discussions made
hereinabove and on taking an overall view, the Impugned
judgment dated 17-01-2012 and order of sentence dated 21-01-
2012 passed in S.T. No. 118/13 of 2003/07 (arising out of
Durgawati P.S. Case No. 15/2003) is varied only to the extent
that the conviction of the appellants stands modified to that
under Sections 323 of the IPC.
27. However, so far as, the sentence is concerned,
having regard to the facts and circumstances of the case and the
period already undergone by the appellants, the sentence of
rigorous imprisonment for one year is modified and reduced to
the period already undergone. It is directed that if the appellants
have already undergone the modified sentence, they shall be set
at liberty forthwith, unless required in connection with any other
case. The appellants are discharged from the liabilities of their
bail bonds, if any.
28. Accordingly, the present appeals are partially
allowed.
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29. 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)
Niraj/-
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