Patna High Court
Md. Shams Tabrez @ Tinku vs The State Of Bihar And Ors on 24 July, 2026
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.439 of 2018
Arising Out of PS. Case No.-274 Year-2006 Thana- JAGDISHPUR District- Bhagalpur
======================================================
Md. Shams Tabrez @ Tinku S/o Md. Anwar Alam, R/o Vill. and P.O.-
Khiriband, P.S.- Jagdishpur, District- Bhagalpur.
... ... Appellant/s
Versus
1. State Of Bihar
2. Md. Samsher @ Samtul Mistry S/o Late Md. Yusuf, R/o Vill.- Khiri Bandh,
P.S.- Jagdishpur, District- Bhagalpur.
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 452 of 2018
Arising Out of PS. Case No.-274 Year-2006 Thana- JAGDISHPUR District- Bhagalpur
======================================================
Md. Shams Tabrez @ Tinku S/o Md. Anwar Alam, Resident of Village and
P.O.-Khiriband, P.S.-Jagdishpur,District-Bhagalpur
... ... Appellant/s
Versus
1. The State of Bihar
2. Chand Alam @ Manu S/o Md. Uslam Resident of village and P.O.-
Khiriband, P.S.-Jagdishpur, District-Bhagalpur.
3. Md. Ali S/o Md. Uslam, Resident of village and P.O.-Khiriband, P.S.-
Jagdishpur, District-Bhagalpur.
4. Md. Shanhnawaz S/o Md. Uslam Resident of village and P.O.-Khiriband,
P.S.-Jagdishpur, District-Bhagalpur.
5. Md. Lal S/o Md. Uslam Resident of village and P.O.-Khiriband, P.S.-
Jagdishpur, District-Bhagalpur.
6. Md. Islam S/o Late Wahid Resident of village and P.O.-Khiriband, P.S.-
Jagdishpur, District-Bhagalpur.
7. Md. Afsar S/o Md. Shamsher Mistry Resident of village and P.O.-Khiriband,
P.S.-Jagdishpur, District-Bhagalpur.
8. Md. Istkhar S/o Md. Shamsher Mistry Resident of village and P.O.-
Khiriband, P.S.-Jagdishpur, District-Bhagalpur.
9. Md. Kunma S/o Md. Shamsher Mistry, Resident of village and P.O.-
Khiriband, P.S.-Jagdishpur, District-Bhagalpur.
10. Md. Nasim Master S/o Late Wajulhaque Resident of village and P.O.-
Khiriband, P.S.-Jagdishpur, District-Bhagalpur.
11. Md. Ajer @ Mintu S/o Md. Shamsher Mistry, Resident of village and P.O.-
Khiriband, P.S.-Jagdishpur, District-Bhagalpur.
Patna High Court CR. APP (DB) No.439 of 2018 dt.24-07-2026
2/34
12. Md. Muddasar S/o Md. Nasim Master Resident of village and P.O.-
Khiriband, P.S.-Jagdishpur, District-Bhagalpur.
13. Md. Adil S/o Naem @ Dafedar Resident of village and P.O.-Khiriband, P.S.-
Jagdishpur, District-Bhagalpur.
14. Md. Wali S/o Md. Belal, Resident of village and P.O.-Khiriband, P.S.-
Jagdishpur, District-Bhagalpur.
15. Md. Jaki S/o Late Irtaj Resident of village and P.O.-Khiriband, P.S.-
Jagdishpur, District-Bhagalpur.
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 439 of 2018)
For the Appellant/s : Mr. Binod Kumar Sinha, Advocate
Ms. Vagisha Pragya Vacaknavi, Advocate
For the Respondent/s : Mr. Rajendra Narain, Sr. Advocate
Mr. Manoj Kumar Jha, Advocate
For the State : Mr. Abhimanyu Sharma, APP
(In CRIMINAL APPEAL (DB) No. 452 of 2018)
For the Appellant/s : Mr. Binod Kumar Sinha, Advocate
Ms. Vagisha Pragya Vacaknavi, Advocate
For the Respondent/s : Mr. Rajendra Narain, Sr. Advocate
Mr. Manoj Kumar Jha, Advocate
For the State : Mr. Abhimanyu Sharma, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
and
HONOURABLE MR. JUSTICE RANA VIKRAM SINGH
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI)
Date: 24-07-2026
Introduction
1. These two connected criminal appeals challenge
the common judgment, dated 11.01.2018, passed by the
learned Additional District & Sessions Judge-VII, Bhagalpur,
in Sessions Trial No. 259/2007 and Sessions Trial No.
259(A)/2007, whereby and whereunder all the accused
persons were acquitted of serious charges under Sections 147,
148, 149, 323, 324, 307 IPC and Section 27 of the Arms Act.
2. The genesis of both cases lies in a violent clash
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that took place on 18th November, 2006 at approximately
08:30 A.M. on the land of a shrine/Mazar, situated in village
Khiribandh, P.S. Jagdishpur, District Bhagalpur.
3. According to the prosecution in the main case
(Jagdishpur P.S. Case No. 274/2006), when the villagers
opposed the construction of a school on the land traditionally
used for Urs fair and Janaza prayers, accused Chand Alam @
Manu caught the victim Sams Tabrej (grandson of the
informant Md. Nejamuddin) by his hair, dashed him to the
ground, and ordered accused Shamsher @ Samsul Mistry to
fire at him. Pursuant to the said order, Shamsher fired from a
counmtry-made pistol, causing a grievous bullet injury on the
right side of the victim's back. After firing, the accused
persons allegedly fled away from the spot while firing
indiscriminately.
4. On the basis of the written report of Md.
Nejamuddin, Jagdishpur P.S. Case No. 274 of 2006 was
registered on 18.11.2006 under Sections 147, 148, 149, 323,
324, 307 IPC and Section 27 of the Arms Act.
5. The police investigated the case and submitted
charge-sheet only against accused Shamsher @ Samsul
Mistry. Cognizance was taken and the case was committed to
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the Court of Sessions, where it was registered as Sessions
Trial No. 259 of 2007. During trial of Sessions Trial No. 259
of 2007, on the basis of the evidence of the prosecution
witnesses, the learned Trial Court, exercising its powers under
Section 319 Cr.P.C., summoned the remaining accused
persons (Chand Alam and others). A separate trial was ordered
and registered as Sessions Trial No. 259(A) of 2007. Charges
were framed against them under Sections 147, 148, 149, 323,
324, 307 IPC. All witnesses were re-examined afresh in the
second trial.
6. On the same day, the other side had lodged
Jagdishpur P.S. Case No. 275 of 2006 under Section 307 IPC
and other provisions, alleging assault and firing by the
informant's group. This case was also committed to Court of
Sessions and tried as part of the connected proceedings.
7. After conclusion of evidence, statements of the
accused under Section 313 Cr.P.C., and hearing of arguments,
the learned Additional District & Sessions Judge-VII,
Bhagalpur delivered a common judgment, dated 11.01.2018,
acquitting all the accused persons in both the trials. Aggrieved
by the said judgment of acquittal, the victim Sams Tabrej and
others have preferred these two appeals before this Court.
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Submissions on behalf of the Appellants
8. Learned counsel for the appellants has advanced
the following submissions:
(i) That the learned Trial Court has committed a
grave error in acquitting the respondents despite clear, cogent,
and consistent evidence of the injured victim (PW-7) and
other eye-witnesses. The victim has categorically stated that
respondent Chand Alam @ Manu caught him by the hair,
dashed him to the ground, and ordered respondent Shamsher
@ Samsul Mistry to fire, pursuant to which Shamsher fired
from a country-made pistol causing grievous injury on the
right side of his back.
(ii) That the testimony of an injured witness carries
great weight and is rarely discarded unless there are
compelling reasons to do so. An injured person is most
unlikely to spare the real culprit and falsely implicate an
innocent person. Reliance has been placed by the learned
counsel for the appellants on the following cases:
(a) State of U.P. v. Kishan, AIR 2005 SC 1250;
(b) Balraje v. State of Maharashtra, (2010) 6
SCC 673;
(c) Ramesh v. State of Haryana, (2016) 1 SCC 1;
Patna High Court CR. APP (DB) No.439 of 2018 dt.24-07-2026
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and
(d) Manoj Kumar v. State of Uttarakhand,
(2019) 5 SCC 600).
(iii) That the evidence of the victim is fully
corroborated by his grandfather (informant PW-8), his father
(PW-5/PW-3), and several other eye-witnesses. There are no
material contradictions on the vital point of the specific overt
act of firing by Shamsher on the order of Chand Alam.
(iv) That the medical evidence (PW-9) provides
clinching corroboration. The doctor found a lacerated wound
with tattooing on the posterior border of the right axilla and
posterior aspect of the right arm, consistent with close-range
firearm injury. The X-ray showed metallic opacity, and the
bullet was later removed. The final opinion is "grievous hurt
caused by bullet".
(v) That the Trial Court has given undue weighttage
to the minor discrepancies (variation in crowd size, peripheral
details) and has wrongly branded all witnesses as interested.
In a village setting, witnesses naturally come from one side or
the other. The presence of a large number of villagers does not
dilute the direct evidence of the injured victim.
(vi) That the finding that the appellants' side were
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aggressors is not supported by reliable evidence. The
construction was on government land, but the real motive
appears to be political rivalry and control over the shrine land.
The respondents, being influential, tried to forcibly construct
the school and resorted to firing when opposed.
(vii) That the procedural objection regarding
Section 319 Cr.P.C. and separate trials is hyper-technical. All
witnesses were re-examined afresh. No prejudice has been
caused to the accused.
(viii) That the order of acquittal recorded by the
Trial Court is perverse, contrary to the weight of evidence,
and suffers from manifest illegality. Hence, it deserves to be
set aside and the respondents are liable to be convicted.
Submissions on behalf of the Respondents
9. Learned counsel for the respondents has opposed
the appeals and submitted as hereunder:
(i) That the impugned judgment of acquittal, dated
11.01.2018
is well-reasoned, based on proper appreciation of
oral and documentary evidence, and does not suffer from any
perversity or illegality. No interference is warranted in appeals
against acquittal.
(ii) That all material prosecution witnesses are
Patna High Court CR. APP (DB) No.439 of 2018 dt.24-07-2026
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highly interested, being close relatives or associates of the
informant Md. Nejamuddin. The victim is the grandson of the
informant and son of PW-5. Such partisan evidence requires
strict scrutiny and independent corroboration, which is
conspicuously absent in the present case.
(iii) That the prosecution story is inherently
improbable. The witnesses have claimed presence of 100 to
1000 persons from the informant’s side, yet a small group of
13-15 persons allegedly dominated the scene, assaulted the
victim in front of such a large hostile crowd, and managed to
escape after firing. This version defies logic and probability.
(iv) That there was a clear motive for false
implication. The informant’s side had encroached upon the
government/Mazar land (admission of construction of
rooms/shops by PW-5), and they wanted to prevent the
construction of school to protect their illegal possession and
influence. Political rivalry between the families (informant’s
side vs. Chand Alam, whose wife was Block Head) further
explains the false case.
(v) That the medical evidence is weak and
insufficient. Although one injury is proved, but the bullet was
never produced as a material exhibit. The supplementary
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report was prepared after more than five years, and no original
PMCH treatment records were brought on record. The chain
of custody is broken.
(vi) That the investigation was highly defective. No
weapon was recovered, no empty cartridge or bullet seized, no
site map prepared, and senior officers present at the spot
(SDO, Dy.SP, CO) were also not been examined as witnesses.
(vii) That the occurrence was a mutual clash, arising
out of a genuine land dispute. The Trial Court has rightly held
that the informant’s side acted as aggressors by mobilizing a
large crowd to stop lawful public work (school construction
on government land). In such factional disputes, false
implications are common, and benefit of doubt must go to the
accused.
(viii) That minor variations in the depositions
between the two trials further create reasonable doubt. The
Trial Court has correctly given benefit of doubt to the accused
persons.
Points for Determination
10. In view of the rival submissions and the
materials on record, the following points arise for
determination in these connected appeals:
Patna High Court CR. APP (DB) No.439 of 2018 dt.24-07-2026
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(i) Whether the prosecution has proved beyond
reasonable doubt that on 18.11.2006 at about 08:30 a.m.,
respondent Chand Alam @ Manu caught the victim Sams
Tabrej by his hair, dashed him to the ground, and ordered
respondent Shamsher @ Samsul Mistry to fire, pursuant to
which Shamsher fired from a country-made pistol causing
grievous bullet injury to the victim?
(ii) Whether the prosecution has proved its case
beyond all reasonable doubts against the respondents in both
trials?
(iii) Whether the finding of acquittal recorded by the
learned Trial Court are perverse or against the weight of
evidence, warranting interference by this Court in appeals
against acquittal?
(iv) If the answer to the second point is in the
affirmative, what sentence should be imposed on the
respondents?
Appreciation of Evidence
11. We have meticulously examined the entire oral
and documentary evidence on record in both connected trials.
Testimony of the Injured Victim (PW-7)
12. The cornerstone of the prosecution case is the
Patna High Court CR. APP (DB) No.439 of 2018 dt.24-07-2026
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testimony of the injured victim, Sams Tabrej @ Tinku (PW-7
in both trials). He has deposed in clear and consistent terms
that on 18.11.2006 at about 08:30 a.m., while he was at the
shrine along with his grandfather (informant Md.
Nejamuddin) and father (Md. Anwar Alam), respondent
Chand Alam @ Manu caught him by his hair, dashed him to
the ground, and ordered respondent Shamsher @ Samsul
Mistry to shoot him. Pursuant to the said order, Shamsher
fired from a country-made pistol which hit him on the right
side of his back, causing him to fall unconscious.
13. It is a well-settled principle of criminal
jurisprudence that the testimony of an injured witness carries
great weight and is rarely discarded unless there are strong
and compelling reasons to do so. An injured person is most
unlikely to spare the real culprit and falsely implicate an
innocent person. This principle has been reiterated by the
Hon’ble Supreme Court in a catena of judgments. Some of the
leading judgments on this point are discussed below:
14. In State of U.P. v. Naresh, reported in (2011) 4
SCC 324, the Hon’ble Supreme Court in paragraph 27 of the
judgement held as hereunder:
“27. The evidence of an
injured witness must be given due
Patna High Court CR. APP (DB) No.439 of 2018 dt.24-07-2026
12/34weightage being a stamped witness,
thus, his presence cannot be
doubted. His statement is generally
considered to be very reliable and it
is unlikely that he has spared the
actual assailant in order to falsely
implicate someone else. The
testimony of an injured witness has
its own relevancy and efficacy as he
has sustained injuries at the time
and place of occurrence and this
lends support to his testimony that
he was present during the
occurrence. Thus, the testimony of
an injured witness is accorded a
special status in law. The witness
would not like or want to let his
actual assailant go unpunished
merely to implicate a third person
falsely for the commission of the
offence. Thus, the evidence of the
injured witness should be relied
upon unless there are grounds for
the rejection of his evidence on the
basis of major contradictions and
discrepancies therein. (Vide Jarnail
Singh v. State of Punjab [(2009) 9
SCC 719 : (2010) 1 SCC (Cri)
107] , Balraje v. State of
Maharashtra [(2010) 6 SCC 673 :
Patna High Court CR. APP (DB) No.439 of 2018 dt.24-07-2026
13/34(2010) 3 SCC (Cri) 211] and Abdul
Sayeed v. State of M.P. [(2010) 10
SCC 259 : (2010) 3 SCC (Cri)
1262])”
15. The victim Sams Tabrej has consistently named
Chand Alam as the person who caught him by the hair and
gave the order, and Shamsher as the person who fired the
gunshot. The victim has no reason to falsely implicate
Shamsher if he was not the person who fired the shot. His
consistent version from the FIR stage carries significant
probative value.
16. In the case of Balraje v. State of Maharashtra,
reported in ((2010) 6 SCC 673) the Hon’ble Apex Court in
paragraph 30 has observed as hereunder:
“30. In law, testimony of an injured
witness is given importance. When the
eyewitnesses are stated to be interested
and inimically disposed towards the
accused, it has to be noted that it would
not be proper to conclude that they would
shield the real culprit and rope in
innocent persons. The truth or otherwise
of the evidence has to be weighed
pragmatically. The court would be
required to analyse the evidence of
related witnesses and those witnesses who
Patna High Court CR. APP (DB) No.439 of 2018 dt.24-07-2026
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accused. But if after careful analysis and
scrutiny of their evidence, the version
given by the witnesses appears to be
clear, cogent and credible, there is no
reason to discard the same. Conviction
can be made on the basis of such
evidence.”
17. The victim was undoubtedly present at the spot
and sustained a gunshot injury. His presence and testimony
cannot be lightly discarded.
18. In the case of Solanki Chimanbhai Ukabhai v.
State of Gujarat, reported in (1983) 2 SCC 174, the Hon’ble
Supreme Court in paragraph 13 held as hereunder:
“13. Ordinarily, the value of medical
evidence is only corroborative. It proves
that the injuries could have been caused
in the manner alleged and nothing more.
The use which the defence can make of the
medical evidence is to prove that the
injuries could not possibly have been
caused in the manner alleged and thereby
discredit the eye-witnesses. Unless,
however the medical evidence in its turn
goes so far that it completely rules out all
possibilities whatsoever of injuries taking
place in the manner alleged by
eyewitnesses, the testimony of the eye-
Patna High Court CR. APP (DB) No.439 of 2018 dt.24-07-2026
15/34witnesses cannot be thrown out on the
ground of alleged inconsistency between it
and the medical evidence.”
19. However, in the present case, the medical
evidence, instead of contradicting with the evidence adduced
by the witnesses, go at the root of their consistencies,
corroborating with sufficient particulars. This further reaffirms
that when the injured witness is corroborated by medical
evidence, the prosecution case gains further strength.
20. The testimony of the injured victim (PW-7),
supported by medical evidence, forms a strong foundation for
the prosecution case.
21. The victim’s testimony on the vital point of the
specific overt act by Chand Alam and Shamsher has remained
consistent from the stage of the FIR in both the trials. Minor
variations in peripheral details (such as exact crowd size) are
natural in a case of this nature after several years and do not
destroy the core credibility of the injured witness.
Corroboration by Other Eye-Witnesses
22. The victim’s testimony is materially
corroborated by his grandfather, the informant Md.
Nejamuddin (PW-8), his father Md. Anwar Alam (PW-5/PW-
3), and several other eye-witnesses (PW-1 to PW-6 in both
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trials). All of them have consistently named Chand Alam as
the person who caught the victim and gave the order, and
Shamsher as the person who actually fired the gunshot.
23. The consistency on this vital point across
multiple witnesses is significant. It is well settled that the
testimony of an injured witness, if found reliable, does not
require further corroboration. However, when there is
corroboration by other eye-witnesses, the prosecution case
becomes stronger. It’s not necessary that this corroboration be
made by any independent witness, and the evidence of
relatives may also be relied upon. Reliance on this point may
be made by referring to the decision of the Hon’ble Supreme
Court in the case of Gangadhar Behera v. State of Orissa,
reported in (2002) 8 SCC 381. The Hon’ble Court in
paragraph 13 of the said judgement observed as hereunder:
“13. We may also observe that
the ground that the witness being a close
relative and consequently being a
partisan witness, should not be relied
upon, has no substance. This theory was
repelled by this Court as early as in Dalip
Singh case [(1953) 2 SCC 36 : AIR 1953
SC 364 : 1953 Cri LJ 1465] in which
surprise was expressed over the
impression which prevailed in the minds
Patna High Court CR. APP (DB) No.439 of 2018 dt.24-07-2026
17/34of the Members of the Bar that relatives
were not independent witnesses. Speaking
through Vivian Bose, J. it was observed :
(AIR p. 366, para 25)
“25. We are unable to agree
with the learned Judges of the High Court
that the testimony of the two eyewitnesses
requires corroboration. If the foundation
for such an observation is based on the
fact that the witnesses are women and
that the fate of seven men hangs on their
testimony, we know of no such rule. If it is
grounded on the reason that they are
closely related to the deceased we are
unable to concur. This is a fallacy
common to many criminal cases and one
which another Bench of this Court
endeavoured to dispel in — Rameshwar v.
State of Rajasthan [1951 SCC 1213 : AIR
1952 SC 54 : 1952 Cri LJ 547] (AIR at p.
59). We find, however, that it
unfortunately still persists, if not in the
judgments of the courts, at any rate in the
arguments of counsel.”
24. The testimony of the injured victim (PW-7) is
materially corroborated by his grandfather (informant PW-8),
his father (PW-5/PW-3), and several other eye-witnesses (PW-
1 to PW-6). All of them have consistently named Chand Alam
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as the person who caught the victim and gave the order, and
Shamsher as the person who actually fired the gunshot. The
consistency on this vital point across multiple witnesses is
significant.
Medical Evidence (PW-9)
25. The medical evidence led by Dr. Dilip Kumar
Singh (PW-9) provides strong corroboration. On 18.11.2006 at
08:40 a.m., the doctor found:
(i) A lacerated wound 1″×½” (depth not probed) on
the posterior border of the right axilla with tattooing of
margins and inverted skin margins; and
(ii) Tattooing on the posterior aspect of the right
arm.
26. These injuries are characteristic of a close-range
firearm injury. The X-ray (Plate No. 25/315, dated
17.01.2007) showed radio-opaque shadow of metallic opacity
over the posterior wall of the chest. The bullet was later
surgically removed on 09.04.2007. The final opinion is
“grievous hurt caused by bullet”.
27. This medical evidence fully supports the ocular
testimony of the victim and eye-witnesses. The presence of
tattooing is particularly important as it indicates the proximity
Patna High Court CR. APP (DB) No.439 of 2018 dt.24-07-2026
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of the firearm at the time of firing.
Interested Witnesses and Land Dispute
28. The respondents have contended that all
prosecution witnesses are interested, being relatives or close
associates of the informant Md. Nejamuddin, while some
witnesses are indeed related to the informant. The presence of
the injured victim who has no personal enmity with Shamsher
individually is a strong factor in favour of the prosecution.
29. It is well settled that the evidence of interested
witnesses cannot be discarded merely on the ground of
interestedness if it is otherwise reliable and corroborated by
medical evidence. In the present case, the testimony of the
injured victim is corroborated by medical evidence, showing a
close-range firearm injury. The existence of prior land dispute
and political rivalry (admitted in cross-examination of PW-3,
PW-5, PW-8) explains the motive behind the incident but does
not render the direct evidence unreliable.
30. The respondents have contended that all
prosecution witnesses are interested, being relatives or close
associates of the informant. The law on this point is well
settled.
31. In the case of Waman v. State of Maharashtra,
Patna High Court CR. APP (DB) No.439 of 2018 dt.24-07-2026
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reported in (2011) 7 SCC 295, it was observed:
“20. It is clear that merely
because the witnesses are related to the
complainant or the deceased, their
evidence cannot be thrown out. If their
evidence is found to be consistent and
true, the fact of being a relative cannot
by itself discredit their evidence. In other
words, the relationship is not a factor to
affect the credibility of a witness and the
courts have to scrutinise their evidence
meticulously with a little care.”
32. While some witnesses are related to the
informant, the presence of the injured victim who has no
personal enmity with Shamsher individually tilts the scale in
favour of the prosecution. The testimony of the injured victim
is corroborated by medical evidence showing a close-range
firearm injury. Therefore, the evidence cannot be discarded
merely on the ground of interest.
Numerical Disparity and Probability of the
Occurrence
33. The Trial Court placed heavy reliance on the
numerical disparity (large crowd on the informant’s side vs
small group of accused). However, in a village setting, one
side will always be larger. This does not negate the direct
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evidence of the injured victim and eye-witnesses, especially
when supported by medical evidence showing a close-range
firearm injury.
34. The principle is well settled that probability
must be judged in the context of the facts of each case and not
in isolation. The Trial Court’s finding on this point appears to
be based more on surmises than on a proper appreciation of
the direct evidence of the injured victim and medical
corroboration.
35. The Trial Court placed considerable emphasis
on the numerical disparity, i.e., the large number of persons
allegedly present from the informant’s side versus the small
group of accused. The respondents have also strongly relied
on this aspect.
36. The Trial Court’s reliance on the numerical
disparity between the informant’s side and the accused
proceeds on an assumption unsupported by the record, that a
smaller group is, for that reason alone, less likely to be the
aggressor. This is not a legal principle but a surmise, and it is
well settled that probabilities must be assessed in the context
of the specific facts of a case rather than through generalized
inferences divorced from the evidence. In this context, it is
Patna High Court CR. APP (DB) No.439 of 2018 dt.24-07-2026
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relevant here to refer State of U.P. v. M.K. Anthony, reported
in (1985) 1 SCC 505. In para 10 of the judgement, the
Hon’ble Supreme Court held:
“10. While appreciating the
evidence of a witness, the approach must
be whether the evidence of the witness
read as a whole appears to have a ring of
truth. Once that impression is formed, it
is undoubtedly necessary for the court to
scrutinise the evidence more particularly
keeping in view the deficiencies,
drawbacks and infirmities pointed out in
the evidence as a whole and evaluate
them to find out whether it is against the
general tenor of the evidence given by the
witness and whether the earlier
evaluation of the evidence is shaken as to
render it unworthy of belief. Minor
discrepancies on trivial matters not
touching the core of the case, hyper-
technical approach by taking sentences
torn out of context here or there from the
evidence, attaching importance to some
technical error committed by the
investigating officer not going to the root
of the matter would not ordinarily permit
rejection of the evidence as a whole. If the
court before whom the witness gives
evidence had the opportunity to form the
Patna High Court CR. APP (DB) No.439 of 2018 dt.24-07-2026
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evidence given by the witness, the
appellate court which had not this benefit
will have to attach due weight to the
appreciation of evidence by the Trial
Court and unless there are reasons
weighty and formidable it would not be
proper to reject the evidence on the
ground of minor variations or infirmities
in the matter of trivial details. Even
honest and truthful witnesses may differ
in some details unrelated to the main
incident because power of observation,
retention and reproduction differ with
individuals. Cross-examination is an
unequal duel between a rustic and refined
lawyer. Having examined the evidence of
this witness, a friend and well-wisher of
the family carefully giving due weight to
the comments made by the learned
counsel for the respondent and the
reasons assigned to by the High Court for
rejecting his evidence simultaneously
keeping in view the appreciation of the
evidence of this witness by the Trial
Court, we have no hesitation in holding
that the High Court was in error in
rejecting the testimony of witness Nair
whose evidence appears to us trustworthy
and credible.”
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37. Further, in the case of Rammi v. State of M.P.,
reported in (1999) 8 SCC 649, the Hon’ble Supreme Court in
para 24 held as follows:
“24. When an eyewitness is
examined at length it is quite possible for
him to make some discrepancies. No true
witness can possibly escape from making
some discrepant details. Perhaps an
untrue witness who is well tutored can
successfully make his testimony totally
non-discrepant. But courts should bear in
mind that it is only when discrepancies in
the evidence of a witness are so
incompatible with the credibility of his
version that the court is justified in
jettisoning his evidence. But too serious a
view to be adopted on mere variations
falling in the narration of an incident
(either as between the evidence of two
witnesses or as between two statements
of the same witness) is an unrealistic
approach for judicial scrutiny.”
38. A rural setting will, as a matter of ordinary
experience, frequently produce an imbalance in numbers
between disputing families or factions. That imbalance carries
no independent evidentiary value and cannot be permitted to
override direct testimony that is otherwise credible and
Patna High Court CR. APP (DB) No.439 of 2018 dt.24-07-2026
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corroborated.
39. In the present case, the witnesses have spoken of
a crowd ranging from 100 to 300-400 persons. Even if a large
number of villagers had gathered, it does not render the direct
evidence of the injured victim (PW-7) unreliable. The victim
has clearly stated that Chand Alam caught him by the hair in
front of the crowd and ordered Shamsher to fire, and that
Shamsher fired the shot which hit him on the right side of the
back. This specific overt act is corroborated by medical
evidence showing a close-range firearm injury with tattooing.
40. The Trial Court’s heavy reliance on numerical
disparity, without properly appreciating the consistent
testimony of the injured victim and medical corroboration, is
not sustainable. In a village setting, one side will always be
larger. That does not mean the smaller group could not have
committed the overt act, especially when the evidence of the
injured witness is reliable.
Investigation and Procedural Aspects
41. Though there were some lapses in investigation
(non-examination of senior officers present at the spot, non-
production of the bullet, etc.), the prompt FIR, consistent
ocular evidence of the injured victim, and medical
Patna High Court CR. APP (DB) No.439 of 2018 dt.24-07-2026
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corroboration are sufficient to prove the guilt of the
respondents.
Scope of Section 319 Cr.P.C.
42. In the case of Hardeep Singh v. State of
Punjab, reported in (2014) 3 SCC 92, the Hon’ble Supreme
Court in paragraph 105 has held hereunder:
“105. Power under Section 319
CrPC is a discretionary and an
extraordinary power. It is to be exercised
sparingly and only in those cases where
the circumstances of the case so warrant.
It is not to be exercised because the
Magistrate or the Sessions Judge is of the
opinion that some other person may also
be guilty of committing that offence. Only
where strong and cogent evidence occurs
against a person from the evidence led
before the court that such power should
be exercised and not in a casual and
cavalier manner.”
43. In the present case, the additional accused were
summoned under Section 319 Cr.P.C. during the trial of
Sessions Trial No. 259 of 2007. All witnesses were re-
examined afresh in Sessions Trial No. 259(A) of 2007. No
prejudice has been caused to the respondents. The procedural
objection is hyper-technical and not fatal to the prosecution
Patna High Court CR. APP (DB) No.439 of 2018 dt.24-07-2026
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case.
Defective Investigation
44. It is settled law that a defective investigation
does not vitiate the trial if the ocular and medical evidence is
reliable. In the case of Karnel Singh v. State of M.P., reported
in (1995) 5 SCC 518, the Hon’ble Supreme Court in
paragraph 5 has observed as hereunder:
“5. Notwithstanding our
unhappiness regarding the nature of
investigation, we have to consider
whether the evidence on record, even on
strict scrutiny, establishes the guilt. In
cases of defective investigation the court
has to be circumspect in evaluating the
evidence but it would not be right in
acquitting an accused person solely on
account of the defect; to do so would
tantamount to playing into the hands of
the investigating officer if the
investigation is designedly defective. Any
investigating officer, in fairness to the
prosecutrix as well as the accused, would
have recorded the statements of the two
witnesses and would have drawn up a
proper seizure-memo in regard to the
‘chaddi’. That is the reason why we have
said that the investigation was slipshod
Patna High Court CR. APP (DB) No.439 of 2018 dt.24-07-2026
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45. Even assuming lapses in investigation, it is well
settled that defective investigation cannot by itself be a ground
to discard otherwise reliable evidence, since to do so would
reward an investigating officer, whose lapses may have been
by design. Courts are duty-bound to be circumspect in
evaluating such evidence, but circumspection is not license to
acquit merely because the investigation fell short of the ideal.
In this context, it is relevant to refer Ram Bihari Yadav v.
State of Bihar, reported in (1998) 4 SCC 517. In paragraph 13
of the said judgment, the Hon’ble Supreme Court held as
hereunder:
“13. Before parting with this case we
consider it appropriate to observe that
though the prosecution has to prove the
case against the accused in the manner
stated by it and that any act or omission
on the part of the prosecution giving rise
to any reasonable doubt would go in
favour of the accused, yet in a case like
the present one where the record shows
that investigating officers created a mess
by bringing on record Exh. 5/4 and GD
Entry 517 and have exhibited remiss
and/or deliberately omitted to do what
they ought to have done to bail out the
Patna High Court CR. APP (DB) No.439 of 2018 dt.24-07-2026
29/34appellant who was a member of the
police force or for any extraneous
reason, the interest of justice demands
that such acts or omissions of the officers
of the prosecution should not be taken in
favour of the accused, for that would
amount to giving premium for the wrongs
of the prosecution designedly committed
to favour the appellant. In such cases, the
story of the prosecution will have to be
examined dehors such omissions and
contaminated conduct of the officials
otherwise the mischief which was
deliberately done would be perpetuated
and justice would be denied to the
complainant party and this would
obviously shake the confidence of the
people not merely in the law-enforcing
agency but also in the administration of
justice.”
46. In the present case, although there were some
lapses in investigation (non-examination of senior officers
present at the spot, non-production of the bullet as material
exhibit, etc.), the prompt FIR, consistent testimony of the
injured victim (PW-7), corroboration by other eye-witnesses,
and medical evidence (PW-9) are sufficient to prove the guilt
of the respondents. The defects in investigation do not
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demolish the prosecution case.
Discussion & Findings
47. After careful consideration of the entire
evidence on record, the submissions of learned counsel for
both sides, and the impugned judgment, dated 11.01.2018, we
record our findings on the points formulated earlier.
1. Whether the prosecution has proved the specific
overt act?
Yes. (a) The injured victim, Sams Tabrej @ Tinku
(PW-7), has consistently deposed that respondent Chand Alam
@ Manu caught him by the hair, dashed him to the ground,
and ordered respondent Shamsher @ Samsul Mistry to fire at
him. Pursuant to the said order, Shamsher fired from a
country-made pistol, which hit the victim on the right side of
his back.
(b) This specific overt act is corroborated by the
informant (PW-8), the victim’s father (PW-5/PW-3), and
several other eye-witnesses. The medical evidence (PW-9)
fully supports the version; lacerated wound with tattooing on
the right axilla and posterior arm, metallic opacity on X-ray,
and bullet later removed. The medical opinion is “grievous
hurt caused by bullet”.
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(c) The testimony of an injured witness, when
corroborated by medical evidence and other witnesses, is
highly reliable. The Trial Court erred in discarding it on the
ground of minor discrepancies and numerical disparity.
2. Whether the prosecution has proved its case
beyond reasonable doubt?
Yes. As discussed in the Section on “Appreciation
of Evidence”, the direct evidence of the injured victim,
corroborated by other witnesses and medical evidence, proves
the case beyond reasonable doubt against the respondents. The
Trial Court’s findings, to the contrary, are not sustainable.
3. Whether the findings of acquittal are perverse?
Yes. The Trial Court ignored the consistent
testimony of the injured victim, medical corroboration, and
settled principles regarding injured witnesses. The findings are
against the weight of evidence and suffer from manifest
illegality. Hence, interference by this Court is warranted.
48. In view of the findings recorded above, we hold
that the prosecution has proved its case beyond reasonable
doubt against the respondents in both the appeals.
Conviction & Sentence
49. Conviction
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(i) We convict the respondents as hereunder:
(a) In Criminal Appeal No. 439 of 2018 (Sessions
Trial No. 259 of 2007)
Respondent – Shamsher @ Samsul Mistry
Section 307 IPC: Guilty
Section 27 Arms Act: Guilty
Sections 147, 148, 149 IPC: Guilty (as member of
unlawful assembly)
(b) In Criminal Appeal No. 452 of 2018 (Sessions
Trial No. 259(A)/2007)
Respondents – Chand Alam @ Manu and others
Section 307/149 IPC: Guilty
Section 324/149 IPC: Guilty
Sections 147, 148 IPC: Guilty
Sentence
50. Considering the nature of the offence (attempt to
murder by firearm), the gravity of the injury caused to the
victim, the political rivalry and land dispute background, the
age of some of the accused (Shamsher was 75 years at the
time of his statement), and the long pendency of the matter
(incident of 2006, judgment in 2018, appeal pending since
2018), we impose the following sentence:
Patna High Court CR. APP (DB) No.439 of 2018 dt.24-07-2026
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(i) Shamsher @ Samsul Mistry
Rigorous Imprisonment for 7 years under Section
307 IPC.
Rigorous Imprisonment for 3 years under Section
27 Arms Act.
All sentences to run concurrently.
Fine of Rs. 25,000/- (Rupees Twenty-Five
Thousand only), in default, further R.I. for 6 months.
(ii) Chand Alam @ Manu and other respondents in
Sessions Trial No. 259(A) of 2007
Rigorous Imprisonment for 5 years under Section
307/149 IPC.
Rigorous Imprisonment for 2 years under Section
324/149 IPC.
Rigorous Imprisonment for 1 year under Sections
147/148 IPC.
All sentences to run concurrently.
Fine of Rs. 15,000/- (Rupees Fifteen Thousand
only) each, in default, further R.I. for 3 months.
51. The respondents shall surrender before the Trial
Court within four weeks from the date of this judgment to
undergo the remaining sentence. In case of default, the Trial
Patna High Court CR. APP (DB) No.439 of 2018 dt.24-07-2026
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Court shall issue process for their arrest.
52. The bail bonds, if any, stand cancelled. The fine,
if deposited, shall be paid to the victim as compensation under
Section 357 Cr.P.C.
53. In view of the findings recorded above, both the
appeals are allowed.
54. The lower court records be sent to the concerned
Trial Court immediately, preferably within a fortnight.
(Bibek Chaudhuri, J)
Rana Vikram Singh, J.: I agree.
(Rana Vikram Singh, J)
skm/-
AFR/NAFR NAFR CAV DATE 07.07.2026 Uploading Date 24.07.2026 Transmission Date 24.07.2026
