Patna High Court
Barnad Hembram And Anr vs State Of Bihar on 9 July, 2026
Author: Purnendu Singh
Bench: Purnendu Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.46 of 2010
======================================================
1. Barnad Hembram S/O Churka Hembram
2. Patras Hembram S/O Barnad Hembram
Both are resident of Village Bardon, P.S. Khaira, District Jamui
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (SJ) No. 143 of 2011
======================================================
Robart Hembram S/O Bernard Hembram Resident of Village- Bardon, P.S.-
Khaira, District- Jamui
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (SJ) No. 46 of 2010)
For the Appellant/s : Mr.Satya Prakash Prasad, Advocate
For the Respondent/s : Mr.S.N.Pd., APP
(In CRIMINAL APPEAL (SJ) No. 143 of 2011)
For the Appellant/s : Mr.Satya Prakash Parasar, Advocate
For the Respondent/s : Mr.Ajay Mishra, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
CAV JUDGMENT
Date : 09-07-2026
Heard learned Mr. Satya Prakash Prasad, learned
counsel appearing on behalf of the appellants in both the Ap-
peals and Mr. S.N. Prasad, learned APP for the State in Cr. Ap-
peal (S.J.) No.46 of 2010 and Mr. Ajay Mishra, learned APP for
the State in Cr. Appeal (S.J.) No.143 of 2011 for the State.
2. Both the Appeals [Cr. Appeal (S.J.) No.46 of 2010
and Cr. Appeal (S.J.) No.143 of 2011] are being heard together.
BRIEF FACTS OF THE CASE
3. The prosecution case arose out of a dispute re-
Patna High Court CR. APP (SJ) No.46 of 2010 dt. 09-07-2026
2/18
garding agricultural land between the informant, Rajo Hembram
and his brother, accused Barnard Hembram [Appellant No.1 of
Cr. Appeal No.46 of 2010 (S.J.)]. According to the prosecution,
the land had already been partitioned between the brothers and
about 5 kathas of land had fallen to the share of the informant.
Despite the partition, the accused persons allegedly forcibly dis-
posses the informant from the land, leading to recurring dis-
putes. On 05.12.2007 at about 2:00 PM, Barnard Hembram al-
legedly started irrigating the informant’s field by using the
pumping set of one Bandhu Rai. When Rajo Hembram reached
the field and objected to the unauthorized irrigation, an alterca-
tion took place between the parties. According to the prosecu-
tion, immediately after the objection was raised, Barnard Hem-
bram along with the other co-accused Patras Hembram and
Robert (Bernard) Hembram, assaulted Rajo Hembram. It was al-
leged that Barnard and Patras caught hold of the informant,
threw him into water and attempted to drown him with the in-
tention to kill him. The accused also assaulted him with lathi,
causing multiple injuries. Hearing the cries of the informant,
Benjamin Hembram rushed to the place of occurrence to rescue
him. The prosecution alleged that accused Patras Hembram
struck Benjamin on the head with the back portion of a spade,
Patna High Court CR. APP (SJ) No.46 of 2010 dt. 09-07-2026
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while the other co-accused also assaulted him with lathi, as a re-
sult, Benjamin sustained severe head injuries and became un-
conscious on the spot. After the villagers arrived, the accused
persons fled from the place of occurrence. Both injured persons
were first taken to the Primary Health Centre, Khaira, where
they were medically examined. Due to the seriousness of Ben-
jamin’s injuries, he was referred to the Sub-Divisional Hospital,
Jamui and thereafter to PMCH, Patna, for specialized treatment.
On the same day, 05.12.2007 at about 6:45 PM, Rajo Hembram
lodged the First Information Report (FIR) at Khaira Police Sta-
tion, situated about 28 kilometres from the place of occurrence.
4. After investigation, the police submitted the
charge-sheet against the accused persons. The case was commit-
ted to the Court of Sessions. Charges were framed against all the
accused for offences under Sections 307/34, 447/34, 307, 326
and 323/34 IPC and the learned trial court convicted the accused
under Section 307/34, 323/34, 447/34 in Cr. Appeal SJ
No.46/2010 and under Section 447,307 read with 34 of IPC in
Cr. Appeal SJ No. 143/2011.
ARGUMENT ON BEHALF OF THE APPELLANTS
5. Learned counsel appearing on behalf of the ap-
pellants submitted that the impugned judgment of conviction
Patna High Court CR. APP (SJ) No.46 of 2010 dt. 09-07-2026
4/18
and order of sentence are unsustainable in law and on facts. It
was contended that the prosecution case originates from a long-
standing land dispute between close relatives, thereby providing
a strong motive for false implication.
6. Learned counsel further submitted that the con-
viction rests solely on the testimonies of interested and related
witnesses, as no independent witness has supported the prosecu-
tion case. The prosecution has also failed to establish the essen-
tial ingredients of the offence under Section 307 IPC, particu-
larly the intention or knowledge to cause death. The allegation
of an attempt to drown the informant has remained unsubstanti-
ated by any objective evidence. It was argued that the evidence
on record including the medical evidence does not justify the
conviction under Section 307 IPC and that the learned Trial
Court has failed to properly appreciate the material inconsisten-
cies and omissions in the prosecution case. It was, therefore,
prayed that the appeal may be allowed by setting aside the judg-
ment of conviction and order of sentence and acquitting the ap-
pellants of all the charges.
ARGUMENT ON BEHALF OF THE STATE
7. Per Contra, learned APP appearing on behalf of the
State while opposing the appeal submitted that the learned Dis-
Patna High Court CR. APP (SJ) No.46 of 2010 dt. 09-07-2026
5/18
trict court, after considering all the evidences, both oral and doc-
umentary, adduced during the course of trial, has committed no
error, either of fact or of law, in recording the conviction of the
appellants on the basis of cogent and reliable material on record,
warranting no interference by this Court.
ANALYSIS AND CONCLUSION
8. Heard the parties.
9. I have perused the Lower Court Records and pro-
ceedings with due care and have also taken note of the argu-
ments canvassed by the learned counsel appearing on behalf of
the parties.
10. The learned Trial Court, upon appreciation of
the oral and documentary evidence, convicted the appellants un-
der Sections 307/34, 323/34, 447/34 ,307 and 326 of the Indian
Penal Code
11. During the trial, the prosecution has examined
altogether five witnesses, namely:
1. PW-1 Benjmin Hembram (Injured)
2. PW-2 Dr. Mithilesh Kumar Sinha (Doctor)
3. PW-3 Manvil Hembram
4. PW-4 Rajo Hembram (Informant)
5. PW-5 A.S.I. Bheem Ram (Investigating Officer)
Patna High Court CR. APP (SJ) No.46 of 2010 dt. 09-07-2026
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12. The prosecution has also relied upon following docu-
ments exhibited during the course of trial:
(i) Exhibit-1 and Exihibit1/1 – X-ray plates of Ben-
jamin Henbram showing skull injury.
(ii) Exhibit.2 and Exhibit 2/1- Injury report and
supplementary injury report of Benjamin Hem-
bram.
(iii) Exhibit-3- Injury report of Rajo Hembram.
(iv) Exhibit-4- Formal FIR
(v) Exhibit-5- Fardbeyan of the informant
(vi) Exhibit-6 and Exhibit6/1- Medical requisitions
for examination of Benjamin Hembram and Rajo
Hembram.
13. Upon a meticulous examination of the record,
the evidence of the prosecution witnesses (PWs) can be sum-
marized as follows:
(I) P.W.1 – Benjamin Hembram has deposed that the
disputed land belonged to his father after partition. On the date
of occurrence, the accused persons were forcibly irrigating their
field with a pumping set. When his father objected, the accused
assaulted him. On hearing the alarm, he rushed to rescue his fa-
Patna High Court CR. APP (SJ) No.46 of 2010 dt. 09-07-2026
7/18
ther, whereupon appellant Patras Hembram struck him on the
head with the back portion of a spade, Robert Hembram also as-
saulted him and Barnard Hembram assaulted him with a lathi.
Due to the assault, he became unconscious and was initially
treated at Khaira Hospital, thereafter referred to Sadar Hospital,
Jamui and finally to PMCH, Patna. He further stated that after
the incident he suffered loss of vision. Despite lengthy cross-ex-
amination, nothing substantial could be elicited to discredit his
testimony and the Trial Court found him to be a reliable injured
witness.
(II) P.W.2 – Dr. Mithlesh Kumar Sinha- The doctor
examined both injured persons on the date of occurrence. He
found multiple injuries on Benjamin Hembram and after receiv-
ing the X-ray report, opined that Benjamin had sustained multi-
ple skull fractures, rendering the head injuries grievous and dan-
gerous. He further opined that the injuries could be caused by a
hard and blunt substance. In respect of Rajo Hembram, the doc-
tor found multiple swellings and abrasions, all of which were
simple in nature. The defence cross-examined the doctor but the
Trial Court accepted his evidence as trustworthy and fully cor-
roborative of the prosecution case.
(III) P.W.3 – Manvil Hembram has admitted that he
Patna High Court CR. APP (SJ) No.46 of 2010 dt. 09-07-2026
8/18
had not actually witnessed the assault. He stated that after learn-
ing of the incident, he reached the place of occurrence, found
both injured persons with injuries and accompanied them to
Khaira Hospital. His testimony was treated only as corrobora-
tive evidence regarding the aftermath of the occurrence and the
condition of the injured persons.
(iv) P.W.4 – Rajo Hembram has reiterated the allega-
tions made in the FIR. He stated that the accused persons were
irrigating his land without permission. When he objected and
switched off the pumping set, Barnard and Patras caught hold of
him, threw him into water and attempted to kill him. All the ac-
cused assaulted him with lathis. On his alarm, his son Benjamin
arrived to rescue him but was assaulted with the back portion of
a spade on the head, causing grievous injuries. He was cross-ex-
amined at length, but the Trial Court found no material contra-
diction affecting his credibility.
(v) P.W.5 – A.S.I. Bheem Ram (Investigating Offi-
cer) he has proved the formal FIR, requisitions for medical ex-
amination, investigation and submission of charge-sheet. He in-
spected the place of occurrence and stated that it was the field of
the informant. He proved the place of occurrence and completed
the investigation. However, he did not find any physical evi-
Patna High Court CR. APP (SJ) No.46 of 2010 dt. 09-07-2026
9/18
dence supporting the allegation that the informant had been
thrown into water.
14. It would be appropriate to reproduce the provi-
sions of Sections 307 and 323 of IPC for the sake of conve-
nience and better understanding of the facts, which is 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 [im-
prisonment for life], or to such punishment as is here-
inbefore mentioned.
Attempts by life-convicts.–[When any
person offending under this section is under sen-
tence of [imprisonment for life], he may, if hurt
is caused, be punished with death].
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 descrip-
tion for a term which may extend to one year, or
with fine which may extend to one thousand ru-
pees, or with both.
15 . The prosecution case substantially rests upon the
testimony of the witnesses, particularly the two injured wit-
nesses, P.W.1 Benjamin Hembram and P.W.4 Rajo Hembram,
whose presence at the place of occurrence is undisputed. Both
witnesses consistently deposed that the occurrence arose out of
a land dispute when the appellants assaulted them after the in-
formant objected to the irrigation of his field. Their ocular ver-
sion is substantially corroborated by the medical evidence of
Patna High Court CR. APP (SJ) No.46 of 2010 dt. 09-07-2026
10/18
P.W.2, Dr. Mithlesh Kumar Sinha, who proved that Benjamin
sustained grievous skull fractures caused by a hard and blunt
substance, while the injuries sustained by Rajo Hembram, were
simple in nature. P.W.3 Manvil Hembram, though not an eyewit-
ness, corroborated the prosecution case regarding the condition
of the injured persons immediately after the occurrence,
whereas P.W.5, the Investigating Officer, proved the formal doc-
uments and the place of occurrence. However, the investigation
did not yield any objective evidence to substantiate the allega-
tion that Rajo Hembram was thrown into water with an intention
to kill.
16. The medical evidence adduced by the prosecution
mainly comprises the testimony of P.W.2, Dr. Mithlesh Kumar
Sinha, who examined both the injured persons immediately after
the occurrence and proved the injury reports (Exts. 2, 2/1 and 3)
along with the X-ray plates (Exts. 1 and 1/1). On examination of
Benjamin Hembram (P.W.1), the doctor noticed multiple in-
juries, including swelling over the right eye, swelling over the
scalp and abrasions. Initially, the opinion regarding certain in-
juries was kept reserved and after receipt of the X-ray report
from the Sub-Divisional Hospital, Jamui, it was found that Ben-
jamin had sustained multiple fractures of the skull, whereupon
Patna High Court CR. APP (SJ) No.46 of 2010 dt. 09-07-2026
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the doctor issued a supplementary injury report opining that the
head injuries were grievous in nature. He further deposed that
the injuries were possible by a hard and blunt substance, such as
the back portion of a spade, as alleged by the prosecution. In re-
spect of Rajo Hembram (P.W.4), the doctor found multiple
swellings and abrasions on different parts of his body, including
the back, thighs, scalp and leg. However, all the injuries sus-
tained by Rajo Hembram were opined to be simple in nature,
caused by a hard and blunt substance. During his cross-exami-
nation, the doctor remained consistent with his opinion and
nothing substantial could be elicited to discredit his testimony.
The medical evidence, therefore, lends substantial corroboration
to the prosecution version regarding the assault upon Benjamin
Hembram and the nature of the weapons used as alleged. How-
ever, it does not provide any independent corroboration to the
allegation that Rajo Hembram was thrown into water with an in-
tention to kill, as no injury or medical finding indicative of such
an act was noticed by the doctor.
17. 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
Patna High Court CR. APP (SJ) No.46 of 2010 dt. 09-07-2026
12/18
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 ac-
cused must not only possess the intention to commit murder but
must also perform an act that clearly demonstrates the com-
mencement of the offence.
18. 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 cau-
tion. 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
Patna High Court CR. APP (SJ) No.46 of 2010 dt. 09-07-2026
13/18provocation, 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.
19. 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
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
Patna High Court CR. APP (SJ) No.46 of 2010 dt. 09-07-2026
14/18conviction 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.”
20.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.
21. Further, to sustain a conviction under Section 307
of IPC, the Apex Court in the case of Sivamani v. State, re-
ported in, 2023 SCC OnLine SC 1581, wherein in paragraph no.
9 has been 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 result-
ing 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 judg-
ment, 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 posi-
tion that because a fatal injury was not sustained
alone does not dislodge Section 307, IPC convic-
tion 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 Sec-
tion 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.”
22. Admittedly, from the prosecution case itself, the
occurrence had its genesis in a long-standing land dispute be-
Patna High Court CR. APP (SJ) No.46 of 2010 dt. 09-07-2026
15/18
tween the informant and appellant Barnard Hembram, who are
own brothers. According to the testimony of P.W.4 Rajo Hem-
bram, the occurrence ensued when he objected to the appellants
while they were irrigating their field, whereupon, he was al-
legedly assaulted and thrown into water. However, the medical
evidence reveals that the injuries sustained by P.W.4 and P.W. 5
were only simple in nature. The Investigating Officer could not
collect evidence to substantiate the allegation that he was
thrown into water with an intention to kill. P.W.1 Benjamin
Hembram deposed that he had sustained a head injury after be-
ing assaulted with the back portion of a spade while intervening
to rescue his father. This version finds corroboration from
P.W.2, Dr. Mithlesh Kumar Sinha, who opined that the skull
fracture was grievous and caused by a hard and blunt object.
P.W.3 Manvil Hembram admittedly did not witness the assault
and had merely reached the place after the occurrence and ac-
companied the injured to the hospital. Thus, the prosecution evi-
dence indicates that the incident arose suddenly in respect of
dispute over possession of agricultural land and not pursuant to
any pre-planned design. Therefore, upon the cumulative evi-
dence on record in the absence of the essential ingredients of
Section 307 IPC, conviction can not stand against the appel-
Patna High Court CR. APP (SJ) No.46 of 2010 dt. 09-07-2026
16/18
lants.
23. I find that the facts of the present case are
squarely covered by the judgment rendered by the Hon’ble
Apex Court in Sivamani (supra). Upon a comprehensive re-ap-
preciation of the entire evidence available on record, it clearly
emerges that the occurrence had taken place suddenly and in the
self-defence, the accused may have caused some injuries though
on the vital part of the body but the injuries are simple in nature,
which does not establish beyond reasonable doubt that the ac-
cused attempted to commit murder in the absence of any fatal or
grievous injuries.
24. Accordingly, so far as (1) Cr. Appeal No.46 of
2010 (S.J.) is concerned, this Court finds that the judgment and
order dated 23.12.2009 passed by the Additional District and
Sessions Judge, Fast Track Court No.V, Jamui in Sessions Trial
No.33 of 2009/89 of 2009 arising out of Khira P.S.Case No.170
of 2007 whereby the appellants no.1. Barnad Hembram and 2.
Patras Hembram have been convicted under Section 307, 323 &
447/34 of IPC and sentence of seven years R.I. and a pay of fine
of Rs.5,000/- each in default of payment of fine, further six
months R.I. for the offence punishable under Section 307 of the
IPC each convicts and three months R.I. for offence punishable
Patna High Court CR. APP (SJ) No.46 of 2010 dt. 09-07-2026
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under Section 323 of IPC and further three months R.I. for of-
fence punishable under Section 447 IPC. All the sentences have
been ordered to run concurrently AND (2) Cr. Appeal . No.143
of 2011 (S.J.) is concerned, this Court finds that the judgment
dated 02.12.2010 and the order dated 06.12.2010 passed by the
Additional District and Sessions Judge, F.T.C.-Vth, Jamui in
Sessions Trial No.33A of 2009/T.R. No.118 of 2010 arising out
of Khaira P.S.Case No.170 of 2007 whereby the appellant
(Robert Hembram) has been convicted under Section 447 &
307/34 of IPC and sentence of seven years R.I. and to pay a fine
of Rs.5,000/- and in default of fine he shall have to go further
six months R.I. for the offence punishable under Section 307 of
IPC and further sentence of three months R.I. for the offence
under Section 447 of IPC. All the sentences have been directed
to run concurrently, are hereby set aside and quashed for the rea-
sons assigned hereinabove.
25. The impugned judgment of conviction and
order of sentence dated 23.12.2009 in Cr. Appeal No.46 of
2010 (S.J.) and judgment of conviction dated 02.12.2010 and
the order of sentence dated 06.12.2010 in Cr. Appeal No.143 of
2011 (S.J.) are hereby set aside and quashed. Consequently, the
above-named appellants/accused are acquitted from all the
Patna High Court CR. APP (SJ) No.46 of 2010 dt. 09-07-2026
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charges levelled against them, they shall be set a liberty
forthwith, unless required in connection with any other case.
They are discharged from the liability of their bail bonds. The
fine deposited by the appellants, if any, shall be refunded to
them.
26. Accordingly, above appeals stand allowed.
27. The 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)
chn/-
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