Sipahi Tiwary vs The State Of Bihar on 17 April, 2025

Patna High Court

Sipahi Tiwary vs The State Of Bihar on 17 April, 2025

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (SJ) No.400 of 2013
     Arising Out of PS. Case No.-8 Year-2007 Thana- NARAINPUR District- Bhojpur
======================================================
Sipahi Tiwary Son Of Late Ram Dayal Tiwary Resident Of Village P.O.-
Madanpur, P.S.- Narayanpur, District- Bhojpur
                                                    ... ... Appellant/s
                                   Versus
The State Of Bihar
                                                 ... ... Respondent/s
======================================================
Appearance :
For the Appellant/s     :        Ms. Sarandha Suman, Amicus Curiae
For the Respondent/s    :        Mr. A.M.P Mehta APP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAMESH CHAND
MALVIYA
                    ORAL JUDGMENT
 Date: 17-04-2025

                    Heard Ms. Sarandha Suman, Amicus Curiae for

 the appellants and Mr. Anand Mohan Mehta, learned APP for

 the State.

                    2. The present appeal has been filed under

 Section 374(2) of Code of Criminal Procedure, 1973

 (hereinafter referred as 'Cr.P.C') challenging the judgment of

 conviction dated 08.05.2013 and order of sentence dated

 10.05.2013

passed in Sessions Trial No. 71 of 2008. in

connection with Narainpur P.S. Case No. 08 of 2007 dated

04.04.2007 passed by Adhoc Additional. Sessions Judge-II, Ara,

Bhojpur whereby and where-under the appellants have been

convicted for the offence under Sections 307 and 341 of Indian

Penal Code (hereinafter referred as ‘IPC‘) and for the offence
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punishable under Sections 307 and 341 of the IPC sentenced to

rigorous imprisonment for 10 years and to pay fine of Rs. 5000/-

and to undergo simple imprisonment for 3 months in default of

payment of fine.

3. The prosecution case as alleged in written

application of PW-6 Parmanand Upadhyay the informant to the

SHO Narainpur P.S. on 04.04.2007 is that on the date of

occurrence that is 04.04.2007 in the evening when son of the

appellant Sipahi Tiwary namely, Deepak was uprooting the

gram crops from the land of informant and after seeing this

father of informant went to house of appellant, and complaint

about the same on which the appellant abused him and

threatened him how dare you to come to the door of his house to

make complaint. Thereafter some verbal altercation ensued in

between them and meanwhile Sipahi Tiwary brought lathi and

assaulted the father of informant. It is alleged that the appellant

with intention to kill the father of the informant hit on his head

with a lathi. He fell on the ground after sustaining injury. On

alarm, the informant reached to the aforesaid place of incident

and tried to bring him to his place in between the appellant also

assaulted him on his left hand as a result of which his hand was

broken. The aforesaid occurrence was witnessed by many
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villagers.

4. Further on the basis of written application of

informant endorsed to SHO Narainpur P.S. FIR has been

registered bearing Narainpur P.S. Case no.8 of 2007 dated

04.04.2007 under Sections 323, 325, 307 and 504 IPC against

appellant and after completing investigation IO has submitted

charge-sheet under Sections 341, 323, 307 and 504 IPC vide

Charge-sheet no. 34 of 2007 on 30.06.2007. After that CJM,

Bhojpur has taken cognizance on 17.07.2007 and case has been

transferred to the JMFC, Ara for commitment. He committed

the present case to the Court of Sessions on 20.02.2008 where

this case has been registered as Sessions Trial No.71 of 2008

and charges under Sections 307 and 341 of IPC has been framed

against appellant and after hearing on the point of charge, on

22.05.2008 case has been transferred to the Court of ADJ FTC

IV, Ara for trial and disposal, then after in pursuance of Misc.

Order no. 67 of 2009 on 04.05.2009 this case has been

transferred to the Court ADJ V, Ara then after in pursuance of

Misc. order no. 6 on 10.01.2011 this case has been transferred to

the Court of Adhoc Additional Session Judge II, Ara and case

has been received on 31.01.2011.

5. In order to prove his case prosecution has
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examined altogether six witnesses out of which PW-1

Shyamlakant Upadhaya brother of informant, PW-2 Rajendra

Sharma has been declared hostile by the prosecution, PW-3

Laldhari Upadhaya (Co-Villager) the chance witness, PW-4

Madan Upadhaya is hearsay witness, PW-5 Ram Bhagat

Upadhaya is the victim person and father of informant, PW-6

Parmanand Upadhaya is informant and victim person himself

whose signature and writing has been identified of his written

application endorsed to the SHO Narainpur P.S. which has been

marked as Ext.1.

6. PW-1 stated in his examination-in-chief that

the alleged incident took place two years back and at the time of

occurrence he was on his door and saw that son of

accused/appellant, namely, Deepak was uprooting gram crops

and fleeing from the land of informant. When informant,

namely, Parmanend Upadhaya and when his father Ram Bhagat

Upadhaya made protest for the act of the son of appellant.

Appellant assaulted Ram Bhagat Upadhaya father of informant

by means of Lathi on his head with the intention to kill him and

after sustaining injury Ram Bhagat Upadhaya fell down on the

ground, his forehead sustained grievous injury, blood was

oozing from his head and he became unconscious and when
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Parmanand Upadhaya (informant) came accused also assaulted

him by Danta by which his right hand was broken. Thereafter,

PW-6 was taken to police station and PW-1 did not

accompanied him and police took his statement where he

narrated the same.

6.i. In his cross-examination, PW-1 disclosed

that he is brother of PW-6 Parmanand the injured person.

Further he described the nearby place of occurrence, in the east

there is field of Parmanand Upadhyay, the field in the west,

north and south side belong to Dwarika Upadhyay.

7. PW-3 stated in his examination-in-chief that

the alleged offence occurred in the month of April of 2007 and

cannot recall the exact date of the incident. Further, he stated

that younger son of accused/appellant whose name he does not

remember had uprooted the gram crops from the land of

informant then the father of informant came to the door of

accused/appellant to make complaint then accused threatening

him that how he dared to come here to make complaint not

leave him alive and kill him then by saying this verbatim

accused has given a Lathi blow upon the father of informant by

which he sustained injury upon head to which previous injuries

caused upon him. Blood was oozing and on his crying his son
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the informant came there then accused person also gave him a

Lathi blow by which he sustained injury upon left hand. Further,

he stated that he was returning from washroom and in the

meantime the quarrel stopped.

7.i In his cross-examination he stated that he had

seen the occurrence and it continues for at least 20-25 minutes

and he did not know whether other co-villagers saw the incident

or not. Further, he stated that the son of accused/appellant

namely Deepak aged about 10-11 years uprooted the gram from

the field of PW-5 and while admonishing the same to the

appellant, the appellant hit PW-5 with lathi on his head and

injured him. He also described the nearby place of occurrence,

the field in the south direction belong to the accused/appellant

Shipahi Tiwari. Further he stated that accused/appellant gave 2-

3 blow of lathi to the Ram Bhagat Upadhyay and thereafter he

injured Parmanand by hitting on his head. He further stated that

accused hit from the front to Ram Bhagat and from the back to

Parmanand and blood came out on the place of occurrence. He

further stated that Ram Bhagat was conscious.

8. PW-5 stated in his examination-in-chief that

the alleged incident took place three years ago, time was 4 PM

and at that time he was on his door. He saw that son of Sipahi
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Tiwary the appellant, was up rooting gram crops from his land

then he came to the appellant to make complaint. Accused

person came out from his house and assaulted him by Danta

upon his forehead as a result of which he sustained injuries upon

his head and blood started to ooze out but he was conscious and

when his son Parmanand came there to rescue him appellant

also assaulted him, due to which his forearm forearm was

broken.

8.i In his cross-examination he stated that he saw

the son of appellant namely Deepak up rooting the gram from

the field and approx one hand full gram was up rooted by him.

He further stated that age of son of accused was approx about 7-

8 years. Further at para 10, he stated that the cloth (kurta) was

full of blood strain. At para 11 he has described the boundaries

of nearby place of alleged occurrence, in the north and south

there is field of Dwarika Upadhyay, and there is no field of

appellant near the place of occurrence.

9. PW-6 stated in his examination-in-chief in the

same way as submitted in his written application endorsed to

SHO Narainpur P.S. vide Ext.1. He further stated that date of

occurrence was 04.04.2007 at 4 PM and at that time son of

appellant, namely, Deepak was uprooting gram crops from his
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land then his father Ram Bhagat Upadhaya came to the house of

appellant, namely, Sipahi Tiwari to make complaint then

accused Sipahi Tiwary became angry and gave a Lathi blow

upon his head as a result of which his head sustained grievous

injury and blood was oozing. At that time appellant was crying

that he will kill him. At that time when he came there appellant

also assaulted him by means of Danta.

9.i In his cross- examination he stated that the

when son of accused/appellant namely Deepak was up rooting

the grams he was there and the aged of Deepak is about 14-15

years. There is no field of Deepak near the place of occurrence

and along with him other villagers also saw Deppak up rooting

the grams from his field. He further stated that when his father

went to complaint accused then he was not having lathi in his

hand and after complaint he bring lathi and hit on the head of

his father PW-5 and many persons saw accused assaulting his

father. Thereafter, accused also assaulted him due to which his

left arm got fractured and blood oozed out. After sustaining the

injury he was conscious. He further stated that due to oozing out

of blood cloth of his father got covered in blood.

10. After closure of the prosecution evidence, the

appellants were examined under Section 313 of the Cr.P.C
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confronting them with incriminating circumstances which came

in the prosecution evidence, so as to afford them opportunity to

explain those circumstances. During this examination, they

admitted that they had heard the evidence of prosecution

witnesses against them. But they did not explain any

circumstance, though they claimed that the prosecution evidence

is false and they are innocent and have been falsely implicated.

11. The learned amicus curiae appearing on

behalf of the appellant submitted that the impugned judgment of

conviction and order of sentence are not sustainable in the eye

of law or on facts. Learned trial Court has not applied its

judicial mind and erroneously passed the judgment of

conviction and order of sentence from the perusal of the

evidences adduced on behalf of the prosecution it is crystal clear

from the statement of all the prosecution witnesses that the

injuries caused by danta which is considered as hard and blunt

substance and no sharp weapon has been used by the

accused/appellant which clear that there is no intention of

causing such injury which led to death of the person. Learned

counsel further contended that the injured persons i.e., the

informant PW-6 and his father PW-5 were not medically

examined and also no injury report is submitted on record.
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Further as the prosecution has failed to produce any Injury

Report which cast a serious doubt on the story that if any injury

was inflicted to the informant and his father or not. If the injury

report was exhibited it would have clearly stated the nature of

the injury.

11.i. Learned counsel further contended that

witnesses have deposed in their evidences that villagers have

seen the incident but none of them have been examined as

prosecution witness. All the witnesses who have been examined

are either the relatives or the hostile witnesses. Further it is

stated that there is absence of independent witness which

weakened the prosecution case. Further it has been submitted

that PW-1 deposed that informant sustained injuries by Lathi in

his left hand whereas informant PW-6 has nothing said about his

injuries caused upon his hand. On the other hand, PW-3 has

stated that informant received injuries upon left hand. She

further submitted that the real fact has not corroborated by any

injury report of informant or examination of doctor who made

conducted his treatment. Further, it is also submitted that injury

report of PW-5 father of informant also has not been brought on

record and doctor who has treated him also has not been

examined by the prosecution. IO is other important witness who
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has also not been examined. There is contradictory evidence

itself on behalf of prosecution and all the witnesses are relatives

of informant who said to be interested. No independent

witnesses have been examined by the prosecution which shows

that prosecution has Utterly failed to prove his case.

11.ii. For that in a case under Section 307 IPC,

the prosecution ought to have examined the doctor but in the

present case, the doctor was not examined and no any plausible

explanation has been given for his non-examination. The

prosecution suffers from grave lacuna as they have failed to

dazzle objective finding relating to the place of occurrence and

the manner of the occurrence. The IO would have stated about

the nature of the weapon used and the severity of the injuries

inflicted. It is highly improbable that the dispute has arose on

such a petty issue, therefore the investigating officer would have

brought the real cause for the altercation and the assault.

Therefore, the IO’s testimony was crucial for establishing the

facts of the case, including the collection of the evidences, the

credibility of the witness’s statement and overall integrity of the

investigation.

12. On the other hand, learned Additional Public

Prosecutor has vehemently opposed these appeals and submits
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that there is direct allegation against the present appellant, for

committing an offence under Sections 307 and 341 of IPC.

Further it is submitted that in view of the aforesaid statements

and the evidence on record, learned trial Court has rightly

convicted the appellant and the present appeals should not be

entertained.

13. At this stage, I would like to appreciate the

relevant extract of entire evidence led by the prosecution and

defence before the Trial Court.

14. The Hon’ble Apex Court in the case of State

of M. P. v. Saleem (2005) 5 SCC 554, where Hon’ble Apex court

has categorically held that whether there was intention to kill or

knowledge that death will be caused is a question of fact and

would depend on the facts of a given case, Relevant portion of

the judgment reads as under:

“16. Whether there was intention to kill or
knowledge that death will be caused is a
question of fact and would depend on the
facts of a given case. The circumstances
that the injury inflicted by the accused was
simple or minor will not by itself rule out
application of Section 307 IPC. The
determinative question is the intention or
knowledge, as the case may be, and not the
nature of the injury….”

15. The Hon’ble Apex Court in the case of Jage
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Ram v. State of Haryana reported in (2015) 11 SCC 366 the

paragraph No. 12 and 13 which are as under:

“12. For the purpose of conviction under
Section 307 IPC, the prosecution has to
establish i. the intention to commit murder;
and ii. the act done by the accused. The
burden is on the prosecution that the
accused had attempted to commit the
murder of the prosecution witness. Whether
the accused person intended to commit
murder of another person would depend
upon the facts and circumstances of each
case. To justify a conviction under Section
307 IPC, it is not essential that fatal injury
capable of causing death should have been
caused. Although the nature of injury
actually caused may be of assistance in
coming to a finding as to the intention of
the accused, such intention may also be
adduced from other circumstances. The
intention of the accused is to be gathered
from the circumstances like the nature of
the weapon used, words used by the
accused at the time of the incident, motive
of the accused, parts of the body where the
injury was caused and the nature of injury
and severity of the blows given, etc.

13. In State of M.P. v. Kashiram [State of
M.P. v. Kashiram, (2009) 4 SCC 26: (2009)
2 SCC (Cri) 40: AIR 2009 SC 1642], the
scope of intention for attracting conviction
under Section 307 IPC was elaborated and
it was held as under: (SCC pp. 29-30, paras
12-13)
“12…13. It is sufficient to justify a
conviction under Section 307 if there is
present an intent coupled with some overt
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act in execution thereof. It is not essential
that bodily injury capable of causing death
should have been inflicted. The section
makes a distinction between the act of the
accused and its result, if any. 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. Therefore, an
accused charged under Section 307 IPC
cannot be acquitted merely because the
injuries inflicted on the victim were in the
nature of a simple hurt.”

16. On deeply studied and scrutinized all

evidences, it is evident to note that the instant case is a case of

no evidence and is not sustainable in the eye of law. The

prosecution version does not seem to be true in the background

of the facts of the case as PW-3 in para 8 of his deposition has

contradicted his statement by stating that he had not seen

himself the son of accused/appellant namely Deepak to uproot

the gram from the field of PW-5. He also described the nearby

place of occurrence as the field in the south direction belong to

the accused/appellant Shipahi Tiwari, which is contradicting

with the description provided by the PW-1 in his deposition.

Whereas all other prosecution witnesses have not described

about accused field being near the place of occurrence. PW-1 in

his deposition stated that PW-5 got unconscious but PW-5
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himself stated in his deposition that he was conscious. Further,

the contents of the FIR has also not been proved as the IO has

not been examined during the course of trial and non-

examination of Investigating Officer is fatal to the case of the

prosecution as he can bring material facts on record as to stained

cloths of PW-5 and have described about the place of

occurrence. The Supreme Court in Habeeb Mohammad vs The

State of Hyderabad 1954 AIR 51, 1954 SCR 475 pointed out

that-

“It was the duty of the prosecution to
examine all material witnesses who could
give an account of the narrative of the
events on which the prosecution is
essentially based and that the question
depended on the circumstances of each
case. In our opinion, the appellant was
considerably prejudiced by the omission on
the part of the prosecution to examine
Biabani and the other officers in the
circumstances of this case and his
conviction merely based on the testimony of
the police jamedar, in the absence of
Biabani and other witnesses admittedly
present on the scene, cannot be said to have
been arrived at after a fair trial,
particularly when no satisfactory
explanation has been given or even
attempted for this omission. A police
Jamedar, in the absence of Biabani and
other witnesses admittedly present on the
scene, cannot be said to have been arrived
at after a fair trial, particularly when no
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satisfactory explanation has been given or
even attempted for this omission.”

17. The Hon’ble Apex Court in the case of

Munna Lal Vs. State of Uttar Pradesh, reported in 2023 SCC

OnLine SC 80, whose relevant paragraph Nos.- 28 and 39 of the

said judgment are reproduced here-in-below:

“28. Before embarking on the exercise of
deciding the fate of these appellants, it
would be apt to take note of certain
principles relevant for a decision on these
two appeals. Needless to observe, such
principles have evolved over the years and
crystallized into ‘settled principles of law.’
These are:

(a)………

(b)………

(c). A defective investigation is not always
fatal to the prosecution where ocular
testimony is found credible and cogent.

While in such a case the court has to be
circumspect in evaluating the evidence, a
faulty investigation cannot in all cases be a
determinative factor to throw out a credible
prosecution version.

(d). Non-examination of the Investigating
Officer must result in prejudice to the
accused; if no prejudice is caused, mere
non-examination would not render the
prosecution case fatal.

(e)………”

39. Secondly, though PW-4 is said to have
reached the place of occurrence at 1.30 pm
on 5th September, 1985 and recovered a
bullet in the blood oozing out from the
injury at the hip of the dead body, no effort
worthy of consideration appears to have
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been made to seize the weapons by which
the murderous attack was launched. It is
true that mere failure/neglect to effect
seizure of the weapon(s) cannot be the sole
reason for discarding the prosecution case
but the same assumes importance on the
face of the oral testimony of the so-called
eye- witnesses, i.e., PW-2 and PW-3, not
being found by this Court to be wholly
reliable. The missing links could have been
provided by the Investigating Officer who,
again, did not enter the witness box.

Whether or not non-examination of a
witness has caused prejudice to the defence
is essentially a question of fact and an
inference is required to be drawn having
regard to the facts and circumstances
obtaining in each case. The reason why the
Investigating Officer could not depose as a
witness, as told by PW-4, is that he had
been sent for training. It was not shown that
the Investigating Officer under no
circumstances could have left the course for
recording of his deposition in the trial
court. It is worthy of being noted that
neither the trial court nor the High Court
considered the issue of non-examination of
the Investigating Officer. In the facts of the
present case, particularly conspicuous gaps
in the prosecution case and the evidence of
PW-2 and PW-3 not being wholly reliable,
this Court holds the present case as one
where examination of the Investigating
Officer was vital since he could have
adduced the expected evidence. His non-

examination creates a material lacuna in
the effort of the prosecution to nail the
appellants, thereby creating reasonable
doubt in the prosecution case.”

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emphasis applied

18. Further, Investigating Officer has also not

been examined during the course of trial as it was fatal since he

could have adduced the expected evidence and his non-

examination creates a material lacuna in the effort of the

prosecution to nail the appellant, thereby creating reasonable

doubt in the prosecution case and the learned trial Court failed

to scrutinize the evidence brought on record regarding

deficiencies, drawbacks and infirmities crept during course of

trial and passed the impugned judgment in complete ignorance

of criminal jurisprudence. Further, there is no eyewitnesses to

the said occurrence and PW-2 and 4 were declared hostile and

have not seen the occurrence. There are many contradictions in

the depositions made by prosecution witnesses in regard to

place of occurrence and manner of occurrence as to how much

blows of lathi was given to the injured persons.

19. The learned trial Court failed to scrutinize the

evidence brought on record regarding deficiencies, drawbacks

and infirmities crept during course of trial and passed the

impugned judgment in complete ignorance of criminal

jurisprudence and passed absurd judgment. Moreover, there are

discrepancies regarding the sequence of events and the presence
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of individuals at the place of occurrence. Considering this fact,

prosecution has failed to establish this case beyond all

reasonable doubt, therefore, in such circumstances, it may not

be proper to convict the appellant/accused on the materials

available on record. Hence, the judgment of conviction and

order of sentence in this present matter is fit to be set aside.

20. Hence, the Judgment of conviction dated

08.05.2013 passed in Sessions Trial No. 71 of 2008 arising out

of Narianpur P.S. Case No. 8 of 2007 dated 04.04.2007 passed

by learned Adhoc Additional Sessions Judge-II, Ara is set aside

and the accused/appellants are acquitted from the charges

leveled against them. As the appellants are on bail, they are

discharged from their liability of bail bonds.

21. Before parting with this appeal, Secretary,

Patna High Court Legal Services Committee is directed to pay

Rs. 5,000/-(five thousand) to the learned Amicus-Curiae Ms.

Sarandha Suman towards honorarium for assisting this Court in

the present appeal.

22. Let a copy of the first and last page of this

judgment be handed over to the Advocate Ms. Sarandha Suman,

learned Amicus-Curiae and Office is directed to proceed further

in granting honorarium to her which is to be paid by Patna High
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Court legal services committee.

23. Accordingly, this appeal is allowed.

(Ramesh Chand Malviya, J)

Brajesh Kumar/-

AFR/NAFR                NAFR
CAV DATE                N/A
Uploading Date          19.04.2025
Transmission Date       19.04.2025