Patna High Court
Jagannath Chaudhary @ Jagarnath … vs The State Of Bihar on 16 April, 2026
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.123 of 2004
Arising Out of PS. Case No.-147 Year-1987 Thana- HUSSAINGANJ District- Siwan
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1. Jagannath Chaudhary @ Jagarnath Chaudhary S/O Raghunandan Chaudhary
@ Raghunath Chaudhary R/O Village- Harihash, P.S- Hussainganj, Dist.-
Siwan.
2. Sheojee Chaudhary S/O Raghunandan Chaudhary @ Raghunath Chaudhary
R/O Village- Harihash, P.S- Hussainganj, Dist.- Siwan.
3. Hari Chaudhary (Abated vide Hon'ble Court's order dated 19-02-2025) S/O
Raghunandan Chaudhary @ Raghunath Chaudhary R/O Village- Harihash,
P.S- Hussainganj, Distt.- Siwan.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Ms. Kumari Chandna, Amicus curiae
Assisted by Ms. Deepali Singh, Amicus curiae
For the Respondent/s : Mrs. Anita Kumari Singh, APP
======================================================
CORAM: HONOURABLE JUSTICE SMT. G. ANUPAMA CHAKRAVARTHY
ORAL JUDGMENT
Date : 16-04-2026
1. This appeal is arising out of the
Judgment of conviction and order of sentenced
dated 19.02.2004 passed by Learned District and
Sessions Judge, First Additional Fast Track Court,
Siwan in Sessions Trial No. 135 of 89/133 of 03,
arising out of Hussainganj Police Station Case no.
147 of 1987 whereby, the appellant no.1/Jagannath
Chaudhary was convicted for the offence
punishable under Section 324 of Indian Penal Code
(hereinafter referred as the I.P.C) and was
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sentenced to undergo rigorous imprisonment for a
period of two years, and appellant no.2 and 3,
namely, Sheojee Chaudhary and Hari Chaudhary,
respectively, were convicted for the offence
punishable under Section 323 of I.P.C. and were
sentenced to undergo rigorous imprisonment for
one year each.
2. The judgment of the trial Court reveals
that, altogether, there were five accused before
the trial Court. The prime accused Kedar
Chaudhary, died in the year 2001, therefore, the
criminal case against him stood abated by order of
the trial Court dated 11.02.2002. Further, accused,
Lalan Chaudhary, was acquitted by the trial Court
for the offences punishable under Section 307 r/w
34 of the I.P.C., and this appeal was preferred by
appellant no.1/Jagannath Chaudhary, appellant
no.2/Sheojee Chaudhary, and appellant no.3/Hari
Chaudhary.
3. This Court, vide order dated
04.12.2024
, called for a report from the
Superintendent of Police, Siwan, regarding the live
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status of the appellants. Pursuant thereto, a report
was received stating therein that appellant
no.3/Hari Chaudhary, died. Accordingly, the
criminal case against him stood abated vide order
dated 19.02.2025 and the appeal had to proceed
only against appellant nos. 1 and 2.
4. As there was no assistance on behalf
of the appellants, this Court was constrained to
appoint Ms. Kumari Chandana as amicus curiae.
However, Ms. Deepali Singh represented the
amicus curiae and submitted her arguments, which
are taken on record.
5. Heard Ms. Deepali Singh and, Ms. Anita
Kumari Singh Additional Public Prosecutor for the
State and perused the records.
6. The case of the prosecution, as per the
fardbeyan, is that on 31.10.1987 at 06:00 A.M.,
while Ram Eqbal Choudhary/informant/P.W.-4, was
sitting at his door, Kedar Choudhary armed with an
axe, Jagannath Choudhary armed with a spear,
Hari Choudhary armed with a stick/lathi, and
Sheojee Choudhary armed with a stick/lathi,
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surrounded the informant/P.W.-4, abused him,
when P.W.-4 opposed him, Kedar Choudhary tried
to hack the informant on his neck. When the
informant tried to escape, his finger got cut.
Further in the said incident, Jagannath Choudhary
hacked P.W.-4 with a spear, due to which he fell on
the ground sustaining injuries. Thereafter, Hari
Choudhary and Sheojee Choudhary also attacked
P.W.-4 with lathis. On witnessing the incident, wife
of P.W.-4/Sakali Devi/P.W.-3, Amarnath Choudhary/
his son P.W.-2, and his grandson Surendra
Choudhary/P.W.-1 tried to save him, but they were
also attacked by the accused and sustained
injuries. On the hue and cry of P.W.-4, one Mian,
Nandlal Choudhary, and Jay Choudhary came to
the place of occurrence to save P.Ws. 1 to 4 from
the accused persons, after seeing them, all the
accused persons fled away. The contents of the
fardbeyan further disclose that the accused warned
P.W.-4 to withdraw the case, otherwise they would
kill him. One day prior to the incident, buffalo of
P.W.-4 had strayed into the cattle field of the
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accused, when it could not be traced, P.W.-4
instituted a case against the accused. The motive
for the alleged incident is the said case which was
lodged by P.W.-4.
7. Basing on the fardbeyan of P.W.-4 dated
31.10.1987 at 01:00 P.M., recorded by Assistant
Sub-Inspector B.N. Prasad at Sadar Hospital, Siwan,
a case was registered against four accused,
namely, Kedar Choudhary, Jagannath Choudhary,
Hari Choudhary, and Sheojee Choudhary, for the
offences punishable under Sections 437, 341, 324,
323, and 307 r/w 34 of the I.P.C., in connection with
Hussainganj P.S. Case No. 147 of 1987.
8. During the course of investigation, the
Investigating Officer recorded the statements of
the witnesses, and one Lalan Choudhary was also
impleaded as an accused. The charge-sheet was
laid against all five accused, including Lalan
Choudhary, for the offences punishable under
Sections 323, 324, and 307 r/w 34 of the I.P.C.
9. On perusal of the record, it is evident
that initially charges were framed under Section
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307 r/w 34 of I.P.C on 28th January 1994. the same
were read over and explained to all the accused in
Hindi, to which they all pleaded innocent and
claimed to be tried.
10. The record reveals that the date of the
incident, as per the fardbeyan, was 31.10.1987.
Hari Choudhary and Sheojee Choudhary
surrendered before the Court on 10.11.1987 and
were granted bail on the same day. The record also
reveals that the sessions trial record was
transferred to different courts, and after closure of
the prosecution evidence, the accused were
examined under Section 313 of the Cr.P.C. Later,
accused/Lalan Choudhary surrendered before the
Chief Judicial Magistrate on 28.04.1988, and
thereafter, he was enlarged on bail. Jagannath
Choudhary surrendered on 12.11.1987, and on the
same day, he was also granted bail. But the
judgment was delivered on 19.02.2004.
11. During the course of trial, the
prosecution has examined altogether five
witnesses and marked five Exhibits which are as
Patna High Court CR. APP (SJ) No.123 of 2004 dt.16-04-2026
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follows:-
P.Ws.No P.W.s Name Relation
P.W. 1 Surendra Chaudhary Grandson of
informant
P.W. 2 Amarnath Chaudhary Son of
informant
P.W. 3 Sakali Devi Wife of
informant
P.W. 4 Ram Iqbal Chaudhary Informant
P.W. 5 Dr. Anil Kr. Verma Doctor
Sl. No. Exhibit Exhibit Details
1. Ext. 1 Fardbeyan of Ram Iqbal
Chaudhary
2. Ext. 2 Injury report of Ram Iqbal
Chaudhary
3. Ext. 2/1 Injury report of Surendra
Chaudhary
4 Ext. 2/2 Injury report of Sakali Devi
5. Ext. 2/3 Injury report of Amarnath
Chaudhary
12. After considering the entire material
available on record, the trial court convicted and
sentenced the appellant no.1/Jagannath Chaudhary
for the offence punishable under Section 324 and
appellant no.2/Sheojee Chaudhary for the offence
punishable under Section 323 of the I.P.C.
13. The points for determination in the
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appeal are :-
(i) Whether the prosecution is
able to prove the guilt of the appellants for
the offences punishable under Sections 324
and 323 of I.P.C. beyond reasonable doubt?
(ii) Whether the trial Court is right
in convicting and sentencing appellant no.
1 for the offence punishable under Section
324 of the IPC and appellant no. 2 for the
offence punishable under Section 323 of
the IPC?
14. In order to decide the aforesaid points
for determination, it is just necessary to re-
appreciate the evidence on record.
15. It is pertinent to mention that P.W.-1 to
3 are the grandson, the son, and wife of the
informant/P.W.-4, who are alleged to have been
injured in the said incident along with P.W.-4. It is
also relevant to mention that, initially, Lalan
Chaudhary was not arrayed as an accused in the
F.I.R., as there was no allegation against him in the
fardbeyan. However, Lalan Chaudhary was
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impleaded as an accused, but was acquitted by the
trial Court for the offence punishable under Section
307 r/w 34 of the I.P.C.
16. P.W.-1, Surendra Chaudhary, the
grandson of P.W.-4, testified that the accused Kedar
was holding an axe, Jagannath Chaudhary was
holding a spear, and others were carrying lathis.
They abused P.W.-4, when he refuted them, Kedar
Chaudhary tried to hack his grandfather on the
neck with an axe, and when his grandfather moved
back, his left thumb got cut. He also testified that
Jagannath Chaudhary, tried to hack his grandfather
on his forehead with a spear, due to which, his
grandfather fell down and the other accused
persons assaulted his grandfather with sticks.
When he tried to save his grandfather, Lalan
Chaudhary hit him with a lathi on his left elbow.
Sheojee, Hari, and Lalan also assaulted his
grandmother with sticks. Further, Sheojee and Hari
assaulted his uncle (P.W.-2) with lathis on both the
legs.
17. In cross examination, it is specifically
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stated by P.W. 1 that there was enmity with the
appellants. Further, sticks were in the hands of
Sheojee Hari and Lalan Chaudhary. He denied the
suggestion that his grandmother was returning
from shop after purchasing items, and that Lalan
and Sheojee did not assaulted his grandmother.
18. The evidence of P.Ws.-2 and 3 is also
on the same lines as that of P.W.-1. However, their
evidence disclose presence of Lalan Chaudhary
along with other appellants, at the place of
occurrence, as well as his participation in the said
occurrence. In cross-examination, it is specifically
testified by P.W.-2 that his grandfather (P.W.-4)
preferred a case against all appellants, five to six
days prior to the incident before the Inspector of
Hussainganj. His evidence also disclose that the
accused/ Kedar, tried to attack his father with an
axe, and when P.W.-4 tried to stop it, his father’s
finger got cut. It is further testified by P.W.-2 that
his mother went to buy vegetables, and in the
alleged incident, all the ration got by her scattered.
19. P.W.-3 also stated about the presence
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of Lalan Chaudhary along with the other accused.
In cross-examination, it is testified by P.W.-3 that he
was treated at the Government Hospital, Siwan,
and did not know whether there is a Government
Hospital at Hussainganj or not?
20. P.W.-4/ Ram Eqbal Chaudhary, is the
informant. His evidence disclose that the incident
occurred 6-7 years prior to his examination before
the trial Court. He deposed that at that particular
point of time, he was sitting at the door, and all the
accused, including Lalan Chaudhary, armed with
weapons, reached there, and Kedar hit him with an
axe. When he tried to stop him, his fingers got cut.
Further, Jagannath hit him on his forehead, and on
his hue and cry, his wife, son and grandson
reached the place of occurrence, where Lalan hit
his grandson (P.W.-1) with a lathi, and Sheojee hit
Amarnath (P.W.-2) on his back. Further, Sheojee
also hit his wife on her hip, and Hari hit her on her
back with a stick. He further testified that the
witness Nandlal Chaudhary died two years earlier,
and Jai Chaudhary and another had colluded with
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the accused, and as such, he was not in a position
to examine the independent witnesses on his
behalf. His evidence further disclose that he had
preferred a case against the appellants before the
police station; However, the said document was
not marked. He was treated at the Government
Hospital, Siwan, where the Sub-Inspector of Police
recorded his statement, which is marked as Ext. 1
(Fardbeyan).
21. In cross-examination, it is specifically
testified by P.W.-4 that the appellants attacked him
with an axe, and when he tried to rebut the axe
with his hand, he sustained a cut injury on his
palm. It is further testified by P.W.-4 that Jai
Chaudhary was the a prime witness, who colluded
due to fear of the accused, and that the
statements of other witnesses were also recorded
in the hospital. However, the fardbeyan of P.W.-4
does not disclose either the alleged attack made
by the appellants from his behind or about the
presence of Lalan Chaudhary.
22. P.W.-5/ Dr. Anil Kumar Verma, deposed
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that on 31.10.1987 at about 10:00 A.M., at the
hospital he examined P.W.-4/ Ram Eqbal
Chaudhary, and found the following injuries:
(i) Sharp cut wound on the left lateral side
of the forehead, measuring 1/2″ x 1/2″ x bone
deep.
(ii) Lacerated wound on the lateral side of
the thumb, 1/4″ x 1/3″ x bone deep.
(iii) Lacerated wound on the back of the
middle finger in the upper portion, 1/3″ x 1/4″ x
bone deep.
(iv) Abrasion on the front of the left knee,
1/3″ x 1/3″ x 1/3″. All the injuries sustained by P.W.-
4 were simple in nature.
I. On the same day, at 10:20 A.M., he
examined P.W.-1/ Surendra Chaudhary, and found
one injury, i.e., a linear bruise on the back of the
left forearm, 2″ above the elbow joint, 1-½” x 1/2″,
which was simple in nature.
II. P.W.-5 further testified that he also
examined P.W.-3/ Sakala Devi, and found two
injuries of simple in nature, which are as follows:
(i) Bruise on the right scapular region, 1/4″
x 2/3″.
(ii) Bruise on the left iliac region, 2″ x 2/3″.
III. P.W.-5 also testified that he examined
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P.W.-2/ Amarnath Chaudhary, at 10:25 A.M. on the
same day and found the following injuries of simple
in nature:
(i) Bruise on the left lateral side of the leg,
2-2 1/2″ above the ankle joint, measuring 1-1/2″ x
1″.
(ii) Tenderness over the calf muscle.
IV. The injury reports of P.Ws.-4, 1, 3, and
2 were marked as Exts. 2, 2/1, 2/2, and 2/3,
respectively.
23. On perusal of the entire evidence, it is
evident that all four witnesses have improved their
version from the contents of the fardbeyan by
stating the presence of Lalan Chaudhary at the
scene of the offence, along with the other accused,
which was disbelieved by the trial Court.
24. It is argued by Ms. Deepali Singh, on
behalf of the learned amicus curiae, that there are
inconsistencies and discrepancies in the evidence
of P.Ws.-1 to 4, who are admittedly related to each
other; It is further submitted that no independent
witnesses were examined for reasons best known
to the prosecution. Therefore, prayed to extend
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the benefit of doubt to the appellants, particularly
when the trial Court has failed to accord due
consideration to the principle of parity in criminal
jurisprudence. It is specifically contended that
when the co-accused were similarly situated, and
the evidence adduced against them is identical;
therefore, the Court cannot adopt different
standards of appreciation so as to convict one
while acquitting another unless there exist
distinguishing features.
25. Admittedly, P.Ws.-1 to 4, in one tone,
have stated about the presence of Lalan
Chaudhary and also the overt act attributed to him.
As stated supra, the name of Lalan Chaudhary was
not in the F.I.R., as there was no specific allegation
against him in the fardbeyan of P.W.-4; however,
the role of Lalan Chaudhary has been stated by all
the witnesses.
26. In this context, she relied on the
following judgments of the Hon’ble Apex Court. In
the case of Yogarani V. State by the Inspector
of Police, reported in 2024 SCC OnLine SC
Patna High Court CR. APP (SJ) No.123 of 2004 dt.16-04-2026
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2609, their Lordships have held as follows:
10. The Court cannot
convict one accused and acquit
the other when there is similar or
identical evidence pitted against
two accused persons. In the case
of Javed Shaukat Ali Qureshi v.
State of Gujarat reported in 2023
INSC 829, this court has held that:
“15. When there is
similar or identical evidence
of eyewitnesses against two
accused by ascribing them
the same or similar role, the
Court cannot convict one
accused and acquit the
other. In such a case, the
cases of both the accused
will be governed by the
principle of parity. This
principle means that the
Criminal Court should
decide like cases alike, and
in such cases, the Court
cannot make a distinction
between the two accused,
which will amount to
discrimination.”
27. In case of Javed Shaukat Ali Qureshi
Vs. State of Gujarat reported in (2023) 9 SCC
164, wherein their Lordships have held as follows:
15. When there is similar or
identical evidence of eyewitnesses
Patna High Court CR. APP (SJ) No.123 of 2004 dt.16-04-2026
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them the same or similar role, the
court cannot convict one accused
and acquit the other. In such a case,
the cases of both the accused will be
governed by the principle of parity.
This principle means that the
criminal court should decide like
cases alike, and in such cases, the
court cannot make a distinction
between the two accused, which will
amount to discrimination.
28. In case of Ajmer Singh Vs. State of
Haryana reported in (2010) 3 SCC 746, wherein
their Lordships have held as follows:
23. The principle of parity in
criminal case is that, where the case
of the accused is similar in all
respects as that of the co-accused
then the benefit extended to one
accused should be extended to the
co-accused. With regard to this
principle, it is important to mention
the observation of this Court in
Harbans Singh v. State of U.P.
[(1982) 2 SCC 101 : 1982 SCC (Cri)
361] In that case it was held, that, in
view of commutation of death
Patna High Court CR. APP (SJ) No.123 of 2004 dt.16-04-2026
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was similarly placed as that of the
appellant, award of death sentence
to the appellant was unjustified and
hence, the death sentence of the
appellant was stayed till the decision
of the President on commutation of
sentence.
29. In case of Balkar Singh Vs. State of
Punjab reported in 1984 SCC OnLine P&H 441,
wherein his Lordship has held as follows:
5. As already noticed above,
the learned Additional Sessions
Judge has placed reliance on the
same set of witnesses in the case
under section 61 (1)(c) of the Act
whereas they have been disbelieved
in the case under section 61 (1) (a)
of the Act. Both the offences are said
to have been committed in the same
transaction. This fact also clouds the
prosecution case with doubt. If in the
same transaction the witnesses are
disbelieved regarding the
commission of one offence their
testimony becomes unreliable with
regard to the other offence also. It is
an additional factor which persuades
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judgment of the learned Additional
Sessions Judge.
30. In case of Yogesh Alias Sachin
Jagdish Joshi Vs. State of Maharashtra
reported in (2008) 10 SCC 394, wherein their
Lordships have held as follows:
28. We are, therefore, of the
view that in the light of the
subsequent events, namely, the
orders of the High Court dated 7-7-
2006 in Criminal Writ Petitions Nos.
1283-84 of 2006, discharging the
appellant’s mother, sister and two
close associates, Accused 2, 4, 11
and 12 respectively; order dated 30-
4-2007 passed by this Court
dismissing the special leave petition
preferred by the State against order
dated 7-7-2006 and order dated 14-
5-2007 passed by the Sessions
Judge, Satara, discharging the father
(A-1) of the appellant, stated to be
the mastermind behind the entire
conspiracy, for offences under
Sections 120-B and 302 IPC, on same
set of circumstances and
accusations, no sufficient ground
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survives to proceed against the
appellant for the aforementioned
offences.
31. All the above citations squarely apply
to the facts and circumstances of the present case.
32. It is further argued on behalf of the
amicus curiae that non-examination of the
Investigating Officer vitiates the case of the
prosecution, inasmuch as prejudice is caused to
the appellants. It is specifically contended that the
examination of the Investigating Officer establishes
the place of occurrence, as well as the recovery or
non-recovery of the alleged weapons or material
objects from the place of occurrence, and also
relates to the motive for the offence and whether
there existed any prior enmity between the parties.
33. In respect of the above, Ms. Deepali
Singh, appearing on behalf of the amicus curiae,
relied on the following judgments. In the case of
S.K. Rashid @ Abdul Rashid and Another v.
State of Bihar, reported in 1986 SCC OnLine
Pat 221, their Lordships have held as follows:
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8. True, non-examination of
Investigating Officer is not
necessarily fatal to the prosecution.
A Court has to see whether the
evidence of the Investigating Officer
is essential for the case of the
prosecution to succeed or not. The
Court has to see at the same time
that the accused is not unnecessarily
harassed and unless it seems that
for unavoidable reasons the
prosecution fail to produce the
Investigasing Officer, it may
pronounce the judgment without the
evidence of the investigating Officer.
The Court, if it is satisfied that the
evidence of the Investigating Officer
is essential, must take coercive
measures to compel his attenance as
a witness. Difficulty, however, which
the Courts in Bihar face, is that even
for executing the process of the
Court help of police hierarchy is
necessary. Without them and without
they desiring to implement the
summons and warrants of the
Courts, all efforts of the Courts for
securing the attendance of the
witnesses fail. What has alarmed us,
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however, is the recessive tendency
of the police personnel. They are
taking the process of the Courts as
lazily and as casually as they can,
they have no priorities for the
proceedings in the Courts over
attending to other works for which
they have their reasons of
preference. As in this case in many
cases Courts have to face a
predicaments which the prosecution
done can solve, when it does
however, is but to tell the Court that
it has no other witnesses to examine
and to take summons only to inform
the Court that it has heard nothing
from the police about the service
thereof. Several adjournments given
by the Court at the instance of the
prosecutor only for ensuring the
attendance of the official witnesses
including the Investigating Officer
keep the trials pending for years and
even after inordinate wait, the
Courts are compelled to decide the
cases without their evidence. A
certain amendment has been made
in the Code of Criminal Procedure by
the State of Uttar Pradesh and for
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such defaulting witnesses adequate
provisions have been made to
punish both judicially and
admistratively. It is high time that in
the State of Bihar also some
provisions are made and in the case
it is found that a certain officer of
the State has ignored the summons
or warrant of the Court, adequate
action is taken against him. The
administration of the State, even
without any such amendment, is
fully empowered and competent to
take notice of the defaults of its
officers in responding to the
summons and warrants of the Court
and it can immediately start taking
notice of the conduct of the
Investigating Officers of the police by
suitably punishing them by awarding
Black marks at least two for default
in each case. We cannot satisfy our
concern by nearly making these
observations and we feel that in the
ends of justice a direction to this
effect to the State of Bihar is
necessary and we, accordingly,
direct the State of Bihar to take
administrative notice of the default
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of its officers in not responding to
the summons and warrants of the
Courts for their appearance as
witnesses and after giving them
opportunity to show cause to award
suitable punishment, as their
defaults cause injury to justice. Such
defaults, undoubtedly, are acts of
indiscipline and inefficiency. To begin
with the Sessions Judges in each
Sessions Division of the State shall
be well advised to furnish to the
District Magistrate and the
Superintendent of Police of each
administrative district of the State a
list of pending cases in which official
witnesses have not respondent to
the summons and the warrants and
also the list of the case which for
default in serving summons and
warrants the cases are awaiting
disposal and the District Magistrate
and District Superintendent of Police
shall be well advised to take
administrative action to ensure
attendance of such official witnesses
in the Court and execution of the
proceeding this Court should issue a
circular forthwith to all Sessions
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Judges to comply with this procedure
and the State of Bihar should issue
circulars to the District Magistrate
and the District Superintendents of
Police to comply with the demands
of the Courts for examination of the
Witnesses in the trials.
34. In case of Behari Prasad and
Others. V. State of Bihar, reported in (1996) 2
SCC 317, their Lordships have held as follows:
23. It, however, appears to
us that the entire case diary should
not have been allowed to be
exhibited by the learned Additional
Sessions Judge. In the facts of the
case, it appears to us that the
involvement of the accused in
committing the murder has been
clearly established by the evidences
of the eyewitnesses. Such evidences
are in conformity with the case made
out in FIR and also with the medical
evidence. Hence, for non-
examination of Investigating Officer,
the prosecution case should not fail.
We may also indicate here that it will
not be correct to contend that if an
Investigating Officer is not examined
Patna High Court CR. APP (SJ) No.123 of 2004 dt.16-04-2026
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in a case, such case should fail on
the ground that the accused were
deprived of the opportunity to
effectively cross-examine the
witnesses for the prosecution and to
bring out contradictions in their
statements before the police. A case
of prejudice likely to be suffered by
an accused must depend on the
facts of the case and no universal
strait-jacket formula should be laid
down that non-examination of
Investigating Officer per se vitiates a
criminal trial. These appeals,
therefore, fail and are dismissed. The
appellants who have been released
on bail should be taken into custody
to serve out the sentence.
35. In case of Lahu Kamlakar Patil and
Another V. State of Maharashtra, reported in
(2013) 6 SCC 417, their Lordships have held as
follows:
18. Keeping in view the
aforesaid position of law, the
testimony of PW 1 has to be
appreciated. He has admitted his
signature in the FIR but has given
the excuse that it was taken on a
Patna High Court CR. APP (SJ) No.123 of 2004 dt.16-04-2026
27/34blank paper. The same could have
been clarified by the investigating
officer, but for some reason, the
investigating officer has not been
examined by the prosecution. It is an
accepted principle that non-
examination of the investigating
officer is not fatal to the prosecution
case. In Behari Prasad v. State of
Bihar [(1996) 2 SCC 317 : 1996 SCC
(Cri) 271] , this Court has stated that
non-examination of the investigating
officer is not fatal to the prosecution
case, especially, when no prejudice
is likely to be suffered by the
accused. In Bahadur Naik v. State of
Bihar [(2000) 9 SCC 153 : 2000 SCC
(Cri) 1186] , it has been opined that
when no material contradictions
have been brought out, then non-
examination of the investigating
officer as a witness for the
prosecution is of no consequence
and under such circumstances, no
prejudice is caused to the accused. It
is worthy to note that neither the
trial Judge nor the High Court has
delved into the issue of non-
examination of the investigating
Patna High Court CR. APP (SJ) No.123 of 2004 dt.16-04-2026
28/34
officer. On a perusal of the entire
material brought on record, we find
that no explanation has been
offered. The present case is one
where we are inclined to think so
especially when the informant has
stated that the signature was taken
while he was in a drunken state, the
panch witness had turned hostile
and some of the evidence adduced
in the court did not find place in the
statement recorded under Section
161 of the Code. Thus, this Court in
Arvind Singh v. State of Bihar [(2001)
6 SCC 407 : 2001 SCC (Cri) 1148] ,
Rattanlal v. State of J&K [(2007) 13
SCC 18 : (2009) 2 SCC (Cri) 349] and
Ravishwar Manjhi v. State of
Jharkhand [(2008) 16 SCC 561 :
(2010) 4 SCC (Cri) 50] , has
explained certain circumstances
where the examination of
investigating officer becomes vital.
We are disposed to think that the
present case is one where the
investigating officer should have
been examined and his non-
examination creates a lacuna in the
case of the prosecution.
Patna High Court CR. APP (SJ) No.123 of 2004 dt.16-04-2026
29/34
36. All the above citations squarely apply
to the facts and circumstances of the present case.
37. It is also contended by Ms. Deepali
Singh, on behalf of amicus curiae that the trial
Court has sentenced the appellants for the
offences punishable under Sections 323 and 324 of
the I.P.C., though they were also charged for the
offence punishable under Section 307 of the I.P.C.,
and by imposing such sentence, the trial Court
ought to have given a clear finding regarding
acquittal and conviction for the offence punishable
under Section 307 r/w Section 34 of the I.P.C., and
also for invoking Section 222 of the Cr.P.C. for
awarding a lesser punishment for the major
offence.
38. The Court cannot adopt different
standards of appreciation to convict one and to
acquit another, unless there exist distinguishing
features. Admittedly, in the present case, Lalan
Chaudhary was acquitted, and the other three
appellants were convicted for the offences
punishable under Sections 323 and 324 of the
Patna High Court CR. APP (SJ) No.123 of 2004 dt.16-04-2026
30/34
I.P.C.; therefore, the appellants are also entitled to
the same benefit as that of Lalan Chaudhary.
39. Admittedly, in the present case, the
Investigating Officer was not examined for reasons
best known to the prosecution. Generally, the non-
examination of the Investigating Officer is not fatal
to the case; however, in the present case, the
place of occurrence was not established, and there
is no evidence on record as to the recovery of the
weapons or material objects from the place of
occurrence or about the motive or enmity for the
offence.
40. On perusal of the entire judgment of
the trial Court, it is evident that the prosecution
has miserably failed to prove the guilt of the
appellants for the offence punishable under
Section 307 r/w 34 of the I.P.C., and therefore, the
trial Court ought to have acquitted other accused
of the offence punishable under Section 307 r/w 34
of the I.P.C. However, the trial Court has convicted
appellant no.1 for the offence punishable under
Section 324 of the I.P.C. and appellant no.2 for the
Patna High Court CR. APP (SJ) No.123 of 2004 dt.16-04-2026
31/34
offence punishable under Section 323 of the I.P.C.
It is the case of the prosecution that all the
accused were armed with weapons. In case, the
appellants were armed with weapons, Section 324
of the I.P.C. is attracted and not Section 323 of the
I.P.C.; therefore, the trial Court ought to have
convicted appellant no.2 also for the offence
punishable under Section 324 of the I.P.C. In the
present case, the conviction of appellant no.2
under Section 323 of the I.P.C. shows non-
application of mind while rendering the judgment.
It is the duty of trial Court to ensure that the
conviction under Section 324 is based on solid
criminal evidence, and not merely as a
compromise to validate the informant’s property
claim. However, there is no evidence on record to
prove that these injuries were sustained by the
prosecution witnesses with the weapons as stated
by them in their oral evidence. Furthermore, P.Ws.-
1, 2, and 3 sustained only bruises on their bodies,
which do not prove the guilt of the appellants. As
per the evidence of P.Ws.-1 to 4, Jagannath
Patna High Court CR. APP (SJ) No.123 of 2004 dt.16-04-2026
32/34
Chaudhary was holding a spear. If at all P.Ws.-1 to
3 sustained injuries on the hands of Jagannath
Chaudhary, there ought to have been incised
wounds on their bodies, and not bruises.
41. P.W.-4 also sustained only simple
injuries. If at all an axe or spear was inflicted upon
P.W.-4, he would have sustained incised wounds.
The weapons stated by all the witnesses to have
been used against P.W.-4 were an axe and a spear.
It is the specific evidence of P.Ws.-1 to 4 that
initially Kedar Chaudhary tried to hack the neck of
P.W.-4, and when P.W.-4 took a step backward, his
left thumb and middle finger got cut. However, the
injury report (Ext. 2) shows only lacerated wounds
and no cut injuries.
42. On perusal of the entire evidence as
well as the judgment of the trial Court, this court
finds it surprising as to how Lalan Chaudhary was
acquitted by the trial Court. The sole reason given
by the trial Court appears to be that the age of
Lalan Chaudhary was recorded as 30 years at the
time of his examination under Section 313 of the
Patna High Court CR. APP (SJ) No.123 of 2004 dt.16-04-2026
33/34
Cr.P.C., and about therefore approximately 16½
years prior to the examination, he would have
been about 13½ years of age; on such premise,
the trial court concluded that he would have been
falsely implicated in the present case. Admittedly,
birth certificate of Lalan Chaudhary is not before
the Court to prove his age, and there is no other
evidence on record to establish that the age of
Lalan Chaudhary was 13½ years as on the date of
the alleged incident. However, considering the
principles of parity in criminal jurisprudence, this
Court is of the considered opinion that the same
benefit has to be extended to the other appellants
also, as they are similarly situated and the
evidence against them is identical in nature.
43. In view of the aforesaid discussions,
this Court is of the considerable view that the trial
Court has erred in convicting the appellants for the
offence punishable u/s 324 and 323 I.P.C. and as
such, the judgment of trial Court is liable to be set
aside.
44. Accordingly, the judgment of
Patna High Court CR. APP (SJ) No.123 of 2004 dt.16-04-2026
34/34
conviction dated and order of sentence dated
19.02.2004, on the file of the Learned District and
Sessions Judge, First Additional Fast Track Court,
Siwan in sessions Trial No. 135/89/133/03 arising
out of Hussainganj Police Station no. 147 of 1987,
is hereby set aside, and the appellants are
acquitted for the aforesaid offences.
45. In result, the appeal is hereby
allowed.
46. The record reveals that the
appellants were released on bail by this Court vide
order dated 03.03.2004. In view of the acquittal of
the appellants, the bail bonds of both the
appellants shall stand cancelled.
47. Let the records be transmitted to the
trial Court.
(G. Anupama Chakravarthy, J)
AMANDEEP/-
AFR/NAFR NARF CAV DATE N/A Uploading Date 07.05.2026 Transmission Date 07.05.2026
