Patna High Court
Mahendra Gope And Ors vs The 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.395 of 2013
Arising Out of PS. Case No.-16 Year-2000 Thana- SILAO District- Nalanda
======================================================
1. Mahendra Gope Son Of Late Munshi Gope Resident Of Village- Halimchak,
P.S.- Silao, Dist.- Nalanda
2. Rajo Gope Son Of Late Munshi Gope Resident Of Village- Halimchak, P.S.-
Silao, Dist.- Nalanda
3. Nawal Gope Son Of Late Munshi Gope Resident Of Village- Halimchak,
P.S.- Silao, Dist.- Nalanda
4. Prasidh Gope Son Of Late Munshi Gope Resident Of Village- Halimchak,
P.S.- Silao, Dist.- Nalanda
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr.Raj Kishor Prasad, Advocate
Mr.Shankar Kumar, Advocate
For the Respondent/s : Mr.Abhay Kumar, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
CAV JUDGMENT
Date : 09-07-2026
Heard Mr. Raj Kishor Prasad, along with Mr. Shankar
Kumar, learned counsels appearing on behalf of the appellants
and Mr. Abhay Kumar, learned APP for the State.
2. This criminal appeal is directed against the
judgment and order dated 11.04.2013 and conviction dated
17.04.2013
passed by Sri Ajit Kumar Sinha Ist Additional
Sessions Judge, Nalanda at Bihar Sharif in Sessions Trial No.
167/2001 (arising out of Silao P.S. Case No. 16/2000 registered
for the alleged offence Under Sections 341,323,324,307/34 I. P.
C. and 27 of the Arms Act by which appellants have been
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sentenced to undergo R.I. for seven years U/s 307/34 I.P.C. and
fine of Rs. 1000/- and further sentenced them to undergo R.I. for
two years in Section 27 of Arms Act and six months U/s 342
I.P.C. Appellant no.4 namely Prasidh Gope has been sentenced
to undergo R.I. for seven years U/s 307 of I.P.C. and fine of Rs.
1000/- and in default of fine the convicts are further sentenced
to undergo one month R.I. All the sentences shall run
concurrently.
BRIEF FACTS OF THE CASE
3. The prosecution case, in brief, is that the informant,
Ramchandra Yadav, gave his fardbeyan before S.I. Lalit
Narayan Pandey of Silao Police Station on 20.01.2000 at Sadar
Hospital, Biharsharif, alleging therein that on the same day at
about 3:00 P.M., while he along with his brothers, namely,
Arbind Yadav and Awadhesh Yadav, was guarding the harvested
paddy in their khalihan, all the accused persons, namely,
Mahendra Gope, Rajo Gope, Nawal Gope and Prasidh Gope,
arrived there armed with firearms and surrounded them.
4. It is alleged that accused Mahendra Gope first fired
from his weapon, but the shot did not hit anyone. Thereafter,
when the informant and his brothers attempted to flee, accused
Prasidh Gope fired another shot which struck Arbind Yadav on
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his mouth, causing him to sustain grievous firearm injuries and
fall down.
5. Upon alarm being raised, villagers assembled at the
place of occurrence, whereupon the accused persons fled away.
The injured was first taken to Silao and thereafter referred to
Sadar Hospital, Biharsharif for treatment.
6. The occurrence is stated to be a pre-existing land
dispute between the parties. On the basis of the aforesaid
fardbeyan, Silao P.S. Case No. 16 of 2000 was instituted under
Sections 341, 323 and 307/34 of the Indian Penal Code and
Section 27 of the Arms Act. After investigation, charge-sheet
was submitted against all the accused persons under Sections
341, 323, 324 and 307/34 of the Indian Penal Code and Section
27 of the Arms Act. The case was ultimately committed to the
Court of Sessions for trial leading to conclusion under Sections
342, 307/34 of the Indian Penal Code and Section 27 of the
Arms Act.
ARGUMENT OF THE APPELLANTS
7. Learned counsel appearing on behalf of the
appellants submitted that the impugned judgment of conviction
and order of sentence are unsustainable in the eyes of law. It was
contended that the prosecution has failed to examine any
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independent witness in support of the occurrence and all the
material witnesses examined on behalf of the prosecution are
closely related to the injured and the informant.
8. Five prosecution witnesses, namely, P.Ws. 2, 3, 4, 5
and 6, have not supported the prosecution case and were
declared hostile. Learned counsel argued that the injured Arbind
Yadav himself was not examined during trial and, therefore, the
best evidence has been withheld from the Court.
9. There are material contradictions and
embellishments in the evidence of the prosecution witnesses
and, therefore, the appellants are entitled to the benefit of doubt.
ARGUMENT ON BEHALF OF THE STATE
10. Per contra, learned APP appearing on behalf of
the State submitted that the prosecution has succeeded in
proving the charges beyond all reasonable doubt. It was argued
that the occurrence stands established by the consistent
testimony of the eye-witnesses, namely, P.Ws. 1, 7, 8, 9 and 10.
11. Learned APP further submitted that the evidence
is fully corroborated by the medical evidence of P.W.11, who
found a grievous firearm injury on the mouth of the injured. It
was contended that merely because some witnesses have turned
hostile, the otherwise reliable testimony of the prosecution
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witnesses cannot be discarded.
12. The non-examination of the injured is adequately
explained by the prosecution, as it has come on record that the
injured subsequently died and, therefore, could not be produced
during trial.
ANALYSIS AND CONCLUSION
13. Heard the parties.
14. 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. It would be
apposite to discuss the oral/documentary evidences as available
on record to re-appreciate the evidences for just and proper
disposal of the present appeal.
15. During the trial, the prosecution examined
altogether thirteen witnesses, namely:-
1. P.W.1 – Baleshwar Gope
2. P.W.2 – Binod Gope
3. P.W.3 – Rajo Devi
4. P.W.4 – Dinesh Gope
5. P.W.5 – Ramashish Gope
6. P.W.6 – Nageshwar Gope
7. P.W.7 – Sundari Devi
8. P.W.8 – Anil Yadav
9. P.W.9 – Awadhesh Prasad
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10.P.W.10 – Ramchandra Yadav (Informant)
11.P.W.11 – Dr. Sita Ballabh Sharan
12.P.W.12 – Lalit Narayan Pandey (Investigating Officer)
13.P.W.13 – Mahadeo Paswan
16. The prosecution has also relied upon following
documents exhibited during the course of trial:
Exhibit-1 : Injury Report of Arbind Yadav.
Exhibit-2 : Fardbeyan of Ramchandra Yadav.
Exhibit-2/1 : Endorsement on the fardbeyan.
Exhibit-3 : Formal First Information Report.
Exhibit-4 : Injury Report obtained during
investigation.
17. Upon a meticulous examination of the record,
the evidence of the prosecution witnesses (PWs) can be
summarized as follows:
i. P.W.1 – Baleshwar Gope P.W.1 is the father
of the injured Arbind Gope and claims to be an eyewitness to
the occurrence. He deposed that on the date of occurrence, while
he was sitting at his darwaja, his sons Awadhesh, Arbind,
Ramchandra and Anil were present at the khalihan. According to
him, accused Mahendra Gope, Nawal Gope, Prasidh Gope and
Rajo Gope arrived there armed with pistols and surrounded his
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7/26sons. He stated that Mahendra Gope first fired but the shot
missed. Thereafter, when his sons attempted to flee, Prasidh
Gope fired another shot which struck Arbind Gope on his
mouth, causing him to fall down. On raising alarm, the accused
persons allegedly fled away after indiscriminate firing. He
further stated that the injured was first taken to Silao, thereafter
to Bihar Sharif Sadar Hospital and subsequently referred to
Patna for treatment. During cross-examination, he stated that the
injured remained unconscious from the place of occurrence till
reaching Bihar Sharif Hospital and regained consciousness after
three to four days. He admitted that his son Ramchandra had
lodged the case on the date of occurrence. He denied the
defence suggestion that Arbind had sustained injuries at the
hands of M.C.C. extremists and that the accused persons had
been falsely implicated due to previous enmity.
ii. P.W.2 – Binod GopeM P.W.2 was declared
hostile by the prosecution. He did not support the prosecution
case during trial.
iii. P.W.3 – Rajo Devi P.W.3 was declared
hostile and did not support the prosecution version during her
deposition before the Court.
iv. P.W.4 – Dinesh Gope P.W.4 was also
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v. P.W.5 – Ramashish Gope- P.W.5 was
declared hostile and did not support the prosecution case during
trial.
vi. P.W.6 – Nageshwar Gope P.W.6 was
declared hostile and did not support the prosecution version.
vii. P.W.7 – Sundari Devi- P.W.7 is the mother
of the injured and claims herself to be an eyewitness. She
deposed that at the relevant time she was present in the khalihan
where her sons Ramchandra, Arbind, Awadhesh and Anil were
engaged in guarding and preparing the paddy. She stated that
accused Mahendra Gope, Nawal Gope, Jagdish Gope and
Prasidh Gope arrived there and surrounded them. According to
her, Mahendra Gope initially fired but the shot missed.
Thereafter, on the exhortation of Nawal Gope, accused Prasidh
Gope fired at Arbind Gope, causing firearm injury on his mouth.
She further stated that Arbind fell down after receiving the
injury and was later taken for treatment. During cross-
examination, she stated that she had gone to the place after
hearing the first gunshot and that the second firing took place in
her presence. She maintained that Arbind sustained firearm
injury on his mouth due to the shot fired by Prasidh Gope.
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the injured and an eyewitness to the occurrence. He deposed
that while he and his brothers were present at the khalihan,
accused Mahendra Gope, Prasidh Gope, Nawal Gope and Rajo
Gope arrived armed with pistols and surrounded them. He stated
that on the exhortation of Rajo Gope, Mahendra Gope fired first
but the shot did not hit anyone. Thereafter, when they attempted
to flee, Prasidh Gope fired another shot which struck his brother
Arbind Gope on the mouth, causing him to fall down. According
to him, the accused persons thereafter resorted to indiscriminate
firing and fled away. During cross-examination, he stated that
the injured Arbind regained the ability to speak after about one
year. He denied the defence suggestion that Arbind had
sustained injuries at the hands of extremist elements.
ix. P.W.9 – Awadhesh Prasad P.W.9 is another
brother of the injured and claims to be an eyewitness. He
deposed that while he, Ramchandra and Arbind were guarding
the khalihan, accused Mahendra Gope, Nawal Gope, Rajo Gope
and Prasidh Gope arrived there armed with pistols and
surrounded them. He stated that on the exhortation of Nawal
Gope, Mahendra Gope fired first but the shot missed.
Thereafter, Prasidh Gope fired at Arbind Gope, causing firearm
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further stated that the accused persons fled away after making
indiscriminate firing. During cross-examination, he stated that
there had been no altercation between the parties on the date of
occurrence prior to the incident. He also stated that Arbind
remained unconscious for a considerable period and had not
given any statement before the police in his presence.
x. P.W.10 – Ramchandra Yadav (Informant)-
P.W.10 is the informant of the case and brother of the injured.
He deposed that at about 3:00 P.M. he, along with his brothers
Arbind, Awadhesh and Anil, was working in the khalihan when
accused Nawal Gope, Mahendra Gope, Rajo Gope and Prasidh
Gope arrived there armed with pistols. According to him,
Mahendra Gope first fired at them but no injury was caused.
Thereafter, the accused persons surrounded them and on the
exhortation of Nawal Gope, Prasidh Gope fired another shot
which struck Arbind Gope on his mouth. He stated that Arbind
fell down unconscious and was subsequently taken first to Silao
Hospital, then to Bihar Sharif Sadar Hospital and thereafter to
Patna for treatment. He proved the lodging of the case and
stated that his statement was recorded by the police at Bihar
Sharif Sadar Hospital. During cross-examination, he reiterated
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the firearm injury and that a bullet had been removed from his
mouth during operation.
xi. P.W.11 – Dr. Sita Ballabh Sharan P.W.11
was posted as Casualty Medical Officer at Bihar Sharif Sadar
Hospital. He examined the injured Arbind Gope on 20.01.2000
at about 4:30 P.M. and found one lacerated wound with tear of
the lower lip, blackened margins, loss of lower incisor teeth and
fracture of mandible. He opined that the injury was caused by a
firearm, was grievous in nature and had been sustained within
six hours of examination. He proved the injury report, which
was marked as Ext.-1. During cross-examination, he stated that
no bullet was recovered from the injury.
xii. P.W.12 – Lalit Narayan Pandey
(Investigating Officer) P.W.12 is the first Investigating Officer
of the case. He proved the fardbeyan, formal FIR and
endorsement thereon as Exts.-2, 2/1 and 3 respectively. He
deposed that during investigation he inspected the place of
occurrence, which he found to be the khalihan situated near the
informant’s house, where he noticed heaps of paddy and a
chauki. He recorded the statements of several witnesses and
obtained the injury report of the injured. He also described the
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examination, he admitted certain omissions and contradictions
in the statements of witnesses recorded under Section 161
Cr.P.C.
xiii. P.W.13 – Mahadeo Paswan- P.W.13 is the
succeeding Investigating Officer. He deposed that after taking
over the investigation, he conducted raids for apprehension of
the accused persons but they could not be found. Upon
completion of investigation and after considering the materials
collected during investigation, he submitted charge-sheet against
accused Mahendra Gope, Rajo Gope, Nawal Gope and Prasidh
Gope.
18. On the basis of materials surfaced during the
trial, the appellants/accused was examined under Section 313 of
the CrPC by putting incriminating circumstances/evidences
surfaced against them, which they denied and showed their
complete innocence.
WHETHER COMMON INTENTION UNDER SECTION 34
OF IPC IS ESTABLISHED TO ATTRACT CONVICTION
UNDER SECTION 307?
19. It would be appropriate to reproduce the
provisions of Section 34 of the Indian Penal Code for proper
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appreciation of the question involved:
“34. Acts done by several persons in furtherance
of common intention.–
When a criminal act is done by several persons in
furtherance of the common intention of all, each of
such persons is liable for that act in the same
manner as if it were done by him alone.”
20. The Apex Court has consciously held that
common intention cannot be inferred merely from presence,
association, or subsequent conduct unless participation and
shared intention are proved beyond reasonable doubt. It is a
settled principle of law that for convicting the accused with the
aid of Section 34 of the IPC the prosecution must establish
prior meetings of minds. It must be established that all the
accused had preplanned and shared a common intention to
commit the crime with the accused who has actually committed
the crime. It must be established that the criminal act has been
done in furtherance of the common intention of all the accused.
21. In case of Krishnan v. State of Kerala, reported in
(1996) 10 SCC 508, the Hon’ble Supreme court has held as
under:
15. Question is whether it is obligatory
on the part of the prosecution to establish
commission of an overt act to press into service
Section 34 of the Penal Code. It is no doubt true that
the court likes to know about an overt act to decide
whether the person concerned had shared the
Patna High Court CR. APP (SJ) No.395 of 2013 dt.09-07-2026
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an overt act has always to be established? I am of
the view that establishment of an overt act is not a
requirement of law to allow Section 34 to operate
inasmuch as this section gets attracted when “a
criminal act is done by several persons in
furtherance of the common intention of all”. What
has to be, therefore, established by the prosecution
is that all the persons concerned had shared the
common intention. Court’s mind regarding the
sharing of common intention gets satisfied when an
overt act is established qua each of the accused. But
then, there may be a case where the proved facts
would themselves speak of sharing of common
intention: res ipsa loquitur.
22. In case of Jasdeep Singh v. State of Punjab,
reported in (2022) 2 SCC 545, the Hon’ble Supreme court has
held as under:
“20. Section 34 IPC creates a deeming
fiction by infusing and importing a criminal act
constituting an offence committed by one, into
others, in pursuance to a common intention. Onus is
on the prosecution to prove the common intention to
the satisfaction of the court. The quality of evidence
will have to be substantial, concrete, definite and
clear. When a part of evidence produced by the
prosecution to bring the accused within the fold of
Section 34 IPC is disbelieved, the remaining part
will have to be examined with adequate care and
caution, as we are dealing with a case of vicarious
liability fastened on the accused by treating him on
a par with the one who actually committed the
offence.
21. What is required is the proof of
common intention. Thus, there may be an offence
without common intention, in which case Section 34
IPC does not get attracted.
22. It is a team effort akin to a game of
football involving several positions manned by
many, such as defender, mid-fielder, striker, and a
keeper. A striker may hit the target, while a keeper
may stop an attack. The consequence of the match,
either a win or a loss, is borne by all the players,
though they may have their distinct roles. A goal
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what matters. As against the specific individuals
who had impacted more, the result is shared
between the players. The same logic is the
foundation of Section 34 IPC which creates shared
liability on those who shared the common intention
to commit the crime.
23. The intendment of Section 34 IPC is
to remove the difficulties in distinguishing the acts
of individual members of a party, acting in
furtherance of a common intention. There has to be
a simultaneous conscious mind of the persons
participating in the criminal action of bringing
about a particular result. A common intention qua
its existence is a question of fact and also requires
an act “in furtherance of the said intention”. One
need not search for a concrete evidence, as it is for
the court to come to a conclusion on a cumulative
assessment. It is only a rule of evidence and thus
does not create any substantive offence.
24. Normally, in an offence committed
physically, the presence of an accused charged
under Section 34 IPC is required, especially in a
case where the act attributed to the accused is one
of instigation/exhortation. However, there are
exceptions, in particular, when an offence consists
of diverse acts done at different times and places.
Therefore, it has to be seen on a case-to-case
basis.”
23. The aforesaid judgment was reiterated by the
Apex Court in case of Constable 907 Surendra Singh & Anr.
Versus State Of Uttarakhand reported in (2025) INSC 114.
24. 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
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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 but must also perform an act that clearly
demonstrates the commencement of the offence.
25. It would be appropriate to reproduce the
provisions of Sections 307 and 342 of IPC for the sake of
convenience 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 [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].
342- Punishment for wrongful confinement.–
Whoever wrongfully confines any person 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.”
26. The Apex Court laid down the litmus test for
determination of nature of offence in Pulicherla Nagaraju v.
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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.
27. A reference in this regard has been made by the
Apex Court in the case of Sivamani v. State, reported 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
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
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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.”
28. 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
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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.”
29.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.
30. The record reveals that P.W.2 – Binod Gope,
P.W.3 – Rajo Devi, P.W.4 – Dinesh Gope, P.W.5 – Ramashish
Gope and P.W.6 – Nageshwar Gope were declared hostile
during the course of trial and did not support the prosecution
case in material particulars. Their evidence does not corroborate
the version of the occurrence as projected by the prosecution
and, therefore, their testimonies are of little assistance in
establishing the charges levelled against the accused persons.
Consequently, the evidence of the aforesaid hostile witnesses
cannot be relied upon to sustain the conviction of the appellants
except to the extent any part thereof finds corroboration from
other cogent and reliable evidence available on the record.
31. The prosecution case substantially rests upon the
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testimonies of P.W.1 Baleshwar Gope, P.W.7 Sundari Devi,
P.W.8 Anil Yadav, P.W.9 Awadhesh Prasad and P.W.10
Ramchandra Yadav, who claim to be eyewitnesses to the
occurrence, while P.W.11 Dr. Sita Ballabh Sharan provides
medical corroboration regarding the firearm injury sustained by
Arbind Gope. P.W.12 Lalit Narayan Pandey and P.W.13
Mahadeo Paswan are the investigating officers who have spoken
about the investigation conducted in the case. The evidence of
the material witnesses attributes specific overt acts primarily to
accused Prasidh Gope, who is alleged to have fired the shot
causing firearm injury on the mouth of Arbind Gope, while the
remaining accused, namely Mahendra Gope, Nawal Gope and
Rajo Gope, are alleged to have accompanied him, surrounded
the victims and participated in the occurrence. Although the
eyewitnesses have broadly supported the prosecution version
regarding the place, time and manner of occurrence, certain
discrepancies emerge in their depositions concerning the
sequence of events, the role of individual accused persons, the
presence of particular witnesses at the place of occurrence and
the period during which the injured remained unconscious.
Furthermore, five prosecution witnesses, namely P.W.2 Binod
Gope, P.W.3 Rajo Devi, P.W.4 Dinesh Gope, P.W.5 Ramashish
Patna High Court CR. APP (SJ) No.395 of 2013 dt.09-07-2026
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Gope and P.W.6 Nageshwar Gope, were declared hostile and did
not support the prosecution case, thereby depriving the
prosecution of independent corroboration from those witnesses.
Nevertheless, the prosecution version regarding the firearm
injury to Arbind Gope finds support from the medical evidence
adduced through P.W.11.
32. The medical evidence of P.W.11 Dr. Sita Ballabh
Sharan indicates that the injured Arbind Gope had sustained a
grievous firearm injury consisting of a lacerated wound with
tear of the lower lip, blackened margins, loss of lower incisor
teeth and fracture of the mandible, which, according to the
doctor, had been caused by a firearm within six hours of
examination. The medical evidence, therefore, lends support to
the prosecution case to the extent that Arbind Gope had
sustained a firearm injury. However, it is also evident from the
record that P.W.2 Binod Gope, P.W.3 Rajo Devi, P.W.4 Dinesh
Gope, P.W.5 Ramashish Gope and P.W.6 Nageshwar Gope were
declared hostile and did not support the prosecution version,
resulting in absence of corroboration from several independent
witnesses cited by the prosecution. Further, the prosecution case
rests predominantly upon the testimonies of the injured’s close
family members, namely P.W.1 Baleshwar Gope, P.W.7 Sundari
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Devi, P.W.8 Anil Yadav, P.W.9 Awadhesh Prasad and P.W.10
Ramchandra Yadav. Certain inconsistencies are also noticeable
regarding the precise sequence of events, the role attributed to
individual accused persons and the circumstances in which the
occurrence took place. The evidence on record further discloses
that the parties were known to each other and residing in close
proximity, thereby necessitating cautious scrutiny of the
interested testimony. The failure of a number of prosecution
witnesses to support the case and the absence of corroboration
from independent witnesses are circumstances which require
careful consideration while appreciating the prosecution
evidence against each of the accused persons individually.
33. Admittedly, from the prosecution case itself, it
transpires that the alleged occurrence is stated to have taken
place all of a sudden at the khalihan when the informant and his
family members were present there and the accused persons
allegedly arrived armed with firearms. The prosecution case
does not disclose any immediate provocation or altercation
preceding the occurrence on the same day, rather P.W.9
Awadhesh Prasad has specifically stated in his cross-
examination that prior to the occurrence there had been no
dispute or altercation between his family and the accused
Patna High Court CR. APP (SJ) No.395 of 2013 dt.09-07-2026
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persons on that day. However, the prosecution evidence suffers
from certain infirmities inasmuch as the case substantially rests
upon the testimonies of P.W.1 Baleshwar Gope, P.W.7 Sundari
Devi, P.W.8 Anil Yadav, P.W.9 Awadhesh Prasad and P.W.10
Ramchandra Yadav, all of whom are closely related to the
injured Arbind Gope, while P.W.2 Binod Gope, P.W.3 Rajo
Devi, P.W.4 Dinesh Gope, P.W.5 Ramashish Gope and P.W.6
Nageshwar Gope, cited as prosecution witnesses, were declared
hostile and did not support the prosecution case. The evidence
of the eyewitnesses is not entirely free from discrepancies with
regard to the precise sequence of events, the presence of
particular witnesses at the place of occurrence and the role
attributed to each accused person. Nevertheless, the prosecution
version regarding the firearm injury sustained by Arbind Gope
finds support from the medical evidence of P.W.11 Dr. Sita
Ballabh Sharan, who found a grievous firearm injury on the
mouth of the injured involving fracture of the mandible and loss
of teeth. At the same time, it is noteworthy that the injured
Arbind Gope himself was not examined during trial, the
prosecution having stated that he died before his evidence could
be recorded. Therefore, in the absence of testimony of the
injured and in view of the hostility of several prosecution
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witnesses, the evidence against each accused is required to be
scrutinized with greater caution, particularly while determining
the existence of common intention and the individual role
attributed to each of the accused persons.
34. In view of the aforesaid discussion of the
factual and legal aspects and upon a comprehensive re-
appreciation of the entire evidence available on record, it
emerges that the prosecution has been able to establish that
Arbind Gope sustained a firearm injury on the date, time and
place of occurrence as alleged. The ocular version of P.W.1
Baleshwar Gope, P.W.7 Sundari Devi, P.W.8 Anil Yadav, P.W.9
Awadhesh Prasad and P.W.10 Ramchandra Yadav finds
substantial corroboration from the medical evidence of P.W.11
Dr. Sita Ballabh Sharan, who found a grievous firearm injury on
the mouth of the injured involving fracture of the mandible, loss
of teeth and blackening around the wound, suggestive of firearm
discharge. However, it is equally evident that the injured Arbind
Gope was not examined during trial and that P.W.2 Binod Gope,
P.W.3 Rajo Devi, P.W.4 Dinesh Gope, P.W.5 Ramashish Gope
and P.W.6 Nageshwar Gope did not support the prosecution case
and were declared hostile. The evidence against accused Prasidh
Gope consistently attributes to him the specific overt act of
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firing the shot which caused the firearm injury to the victim,
whereas the allegation against the remaining accused persons is
based upon their alleged presence at the place of occurrence and
the assertion that they shared a common intention with the
principal assailant. In such circumstances, while the evidence on
record is sufficient to establish the individual role attributed to
accused Prasidh Gope, the materials available on record require
closer scrutiny insofar as the participation and common
intention of the remaining accused persons are concerned.
Consequently, the culpability of each accused is required to be
assessed independently on the basis of the evidence specifically
attributed to him rather than on the mere allegation of collective
participation.
35. Accordingly, this Court finds that impugned
judgment of conviction and order of sentence dated 11.04.2013
and 17.04.2013 passed by the learned trial court in Sessions
Trial No. 167/2001 (arising out of Silao P.S. Case No. 16 of
2000) whereby, the appellants have been convicted under
Sections 307/34, 342, 323, 324 of the Indian Penal Code and
Section 27 of the Arms Act are modified to Section 324 of the
IPC .
36. However, so far as, the sentence is concerned,
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having regard to the facts and circumstances of the case and the
period already undergone by the appellants, the sentence of
rigorous imprisonment for seven years is modified and reduced
to the period already undergone. I accordingly direct that in case
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.
37. Accordingly, the present appeal stands partly
allowed.
38. 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)
Ashishsingh/-
AFR/NAFR NAFR CAV DATE 22.06.2026 Uploading Date 09.07.2026 Transmission Date 09.07.2026
