Patna High Court
Nannku @ Nanku Sah vs The State Of Bihar on 10 March, 2026
Author: Purnendu Singh
Bench: Purnendu Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.7 of 2011
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1. NANNKU @ NANKU SAH Late Jangali Sah R/O,Vill.-Selar Kala, P.S.-
Fulwariya, Dist.Gopalganj
2. Manager Sah, Son of Late Jangali Sah, R/O Vill.-Selar Kala, P.S.-Fulwariya,
Dist.- Gopalganj
3. Kanhaiya Sah @ Kanhaiya, S/o Dwarika Sah, R/O Vill.-Selar Kala, P.S.-
Fulwariya, Dist.-Gopalganj.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr.Rudra Pratap Singh, Amicus curiae
For the Respondent/s : Mr.S.N.Prasad, APP.
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CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL JUDGMENT
Date : 10-03-2026
The appeal was admitted on 17.01.2011, on which
date, the provisional bail granted to the appellants was
confirmed and since then no one has appeared on behalf of the
appellants in spite of the adjournments granted by this Court on
19.01.2017
, 27.03.2025, 03.07.2025, 17.07.2025 and
03.02.2026.
2. Taking into consideration the conduct of the
appellants and the fact that this Court is clogged with old
criminal appeals, this court appoints Mr. Rudra Pratap Singh as
Amicus Curiae .
FACTS OF THE CASE
3. The present appeal has been filed under Section 374
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(2) of the Code of Criminal Procedure challenging the judgment
of conviction and order of sentence dated 02.12.2010 passed by
the learned Additional District and Sessions Judge cum Fast
Track Court-I, Gopalganj in Sessions Case No.
229/2005/155/2009, arising out of Fulwariya P.S. Case No. 09 of
2002, G.R. No. 228/02 whereby the learned trial court convicted
the appellants for the offence punishable under Section 323/34
of the Indian Penal Code and sentenced them to undergo S.I. for
9 months.
4. Being aggrieved and dissatisfied with the aforesaid
judgment of conviction and order of sentence, the appellants
have preferred the present appeal before this Court. The
appellants have assailed the impugned judgment primarily on
the ground that the learned trial court failed to appreciate the
evidence available on record in its proper perspective and has
wrongly recorded the conviction of the appellants.
5. The prosecution case, in brief, is that Fulwariya P.S.
Case No. 9/2002 was instituted on the basis of a written report
submitted by the informant, Raghubar Sah. In his report, the
informant alleged that at about 4:00 P.M., while he was present
at his Bathan, all the accused persons named in the F.I.R. arrived
there, began abusing him, and questioned why he had sold the
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land. Thereafter, the accused persons allegedly started assaulting
the informant with lathis. During the occurrence, accused
Kanaiha Sah caught hold of the informant and instigated others
to kill him, whereupon Jangali Sah and Nanhaku Sah allegedly
assaulted the informant on the head, as a result of which he
sustained injuries on his head and his left hand was fractured.
The alleged cause of the occurrence was stated to be a dispute
relating to land.
6. On the basis of the written report of the informant,
Fulwariya P.S. Case No.9 of 2002 was instituted under Sections
341, 323, 325 and 307/34 of the Indian Penal Code. After
investigation, the police submitted charge sheet under Sections
341, 323, 325 and 307/34 of the Indian Penal Code. The learned
Magistrate took cognizance of the offence and committed the
case to the court of sessions. Charge against the accused persons
was framed under Sections 341, 323, 325 and 307/34 of the
Indian Penal Code. Charges were read over and explained to
them by the Court to which they pleaded not guilty and claimed
to be tried.
ARGUMENT ON BEHALF OF APPELLANT
7. Learned Amicus curiae appearing on behalf of the
appellants submitted that the impugned judgment of conviction
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passed by the learned trial court is wholly illegal, perverse and
not sustainable in the eyes of law as the same has been passed
without proper appreciation of the evidence available on record.
It is submitted that the alleged occurrence is said to have taken
place due to a land dispute between the parties which clearly
indicates that the appellants have been falsely implicated in the
present case on account of previous enmity. It is further
submitted that the prosecution witnesses are interested witnesses
and their evidence suffers from material contradictions and
inconsistencies. Moreover, two prosecution witnesses namely
Mansi Mian and Lalan Rai did not support the prosecution case
and were declared hostile, which creates serious doubt about the
credibility of the prosecution story.
8. Learned counsel further submitted that the
prosecution has also failed to prove the injuries in accordance
with law as the injury report was proved only through a formal
witness and the doctor who allegedly examined the informant
was not examined before the court, thereby depriving the
appellants of the opportunity to cross-examine the medical
officer regarding the nature and cause of injuries. It is also
submitted that there is no specific and reliable evidence
regarding the overt act of each of the appellants and the
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evidence on record is vague and omnibus in nature. The learned
trial court itself did not find sufficient evidence to sustain the
charges under Sections 341, 325 and 307/34 IPC and ultimately
convicted the appellants only under Section 323/34 IPC, which
clearly shows that the prosecution case was not proved in its
entirety. Therefore, the appellants are entitled to the benefit of
doubt and the impugned judgment and order of conviction are
liable to be set aside.
ARGUMENT ON BEHALF OF THE STATE
9. Per contra, learned APP appearing for the State
while opposing the appeal submitted that the learned District
court, after considering all the evidences on record and exhibits
submitted on behalf of the parties during the course of trial, has
rightly convicted the appellants for said offences.
ANALYSIS AND CONCLUSION
10. I have perused the lower court records and
proceedings and also taken note of the argument made by
learned Amicus Curiae and learned APP for the State.
11. The learned trial court, on the basis of materials as
collected during the course of investigation, passed the
Judgment of Conviction dated 02.12.2010 for the offences under
Section 323/34 of the IPC.
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12. During the trial, the prosecution has examined
altogether seven witnesses, namely:
(i) P.W.-1 – Ramdeo Sah
(ii) P.W.-2 – Shyamdeo Sah
(iii) P.W.-3 – Subedar Mian
(iv) P.W.-4 – Mansi Mian
(v) P.W.-5 – Lalan Rai
(vi) P.W.-6 – Umesh Rai
(vii) P.W.-7- Ainul Huque
13. The prosecution has also relied upon following
documents exhibited during the course of trial:-
(i) Injury Report (Exhibit-1)
(ii) Signature of Officer in Charge Fulwariya P.S.
(Exhibit-2).
14. On the basis of materials surfaced during the
trial, the appellants/accused were examined under Section 313
of the Cr.PC by putting incriminating circumstances/evidences
surfaced against them, which they denied and show their
complete innocence.
15. 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
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present appeal.
16. It would be appropriate to reproduce the
provisions of Section 323/34 of the IPC for the sake of
convenience and better understanding of the facts, which are as
under:
“323. Punishment for voluntarily causing hurt.–
Whoever, except in the case provided for by section
334, voluntarily causes hurt, shall be punished with
imprisonment of either description for a term which
may extend to one year, or with fine which may
extend to one thousand rupees, or with both.
17. Having perused the materials available on
record, the sole ground for interfering with the impugned
judgment is that the appellants were roped in a false case due to
enmity with the informant and the material witnesses like the
informant, investigating officer and the medical officer have not
been examined to corroborate the prosecution case. The
appellants were all along on bail during the whole period of trial
and had never misused the privilege of bail granted in their
favour.
18. The records disclose that neither the Investigating
Officer nor the Medical Officer was examined during the course
of trial. Undoubtedly, both are material witnesses, the former
being essential to explain the manner in which the investigation
was conducted and the steps taken during investigation, and the
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latter to prove the medical evidence relating to the nature and
cause of injuries. Their examination also affords the defence an
opportunity to test the fairness of the investigation and the
medical findings through cross-examination. However, it is well
settled that the mere non-examination of the Investigating
Officer or the Medical Officer does not ipso facto vitiate the
prosecution case. The effect of such omission has to be assessed
in the facts and circumstances of each case, particularly with
regard to whether any prejudice has been caused to the accused;
and where the ocular and other substantive evidence is otherwise
found to be cogent, reliable and trustworthy, the prosecution
case cannot be rejected on that ground alone. In this regard,
refernce can be drawn from the judgment passed by the Apex
Court in para no. 18 in the case of Rajesh Patel v. State of
Jharkhand, reported in (2013) 3 SCC 791 is reproduced
hereinafter:
“18. Further, neither the doctor nor the IO has been
examined before the trial court to prove the
prosecution case. The appellant was right in
bringing to the notice of the trial court as well as the
High Court that the non-examination of the
aforesaid two important witnesses in the case has
prejudiced the case of the appellant for the reason
that if the doctor would have been examined he
could have elicited evidence about any injury
sustained by the prosecutrix on her private part or
any other part of her body and also the nature of
hymen layer, etc. so as to corroborate the story of
the prosecution that the prosecutrix suffered
unbearable pain while the appellant committed rape
on her. The non-examination of the doctor who had
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not prejudiced the case of the defence for the reason
that the prosecutrix was examined after 12 days of
the offence alleged to have been committed by the
appellant because by that time the sign of rape must
have disappeared. Even if it was presumed that the
hymen of the victim was found ruptured and no
injury was found on her private part or any other
part of her body, finding of such rupture of hymen
may be for several reasons in the present age when
the prosecutrix was a working girl and that she was
not leading an idle life inside the four walls of her
home. The said reasoning assigned by the High
Court is totally erroneous in law.”
19. I find that the trial court has failed to consider
that the informant was the eye witness who has alleged that
incidence has taken place in his presence while he has failed to
examine himself in course of trial. As a result of vital infirmity
in the impugned judgment, it appears that the prosecution has
miserably failed to establish the charges levelled against the
appellants/accused during the trial.
20. Accordingly, the present appeal is allowed.
21. The impugned judgment of conviction and
sentence dated 02.12.2010, passed by learned Additional
District and Sessions Judge cum Fast Track Court-I, Gopalganj
in Sessions Case No. 229/2005/155/2009, arising out of
Fulwariya P.S. Case No. 09 of 2002, G.R. No. 228/02 is hereby
set aside. Consequently, the above-named appellants/accused
are acquitted from all the charges levelled against them. Since
the appellants are on bail, as such, they are discharged from the
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liability of their bail bonds. The fine deposited by the
appellants, if any, shall be refunded to them.
22. The Patna High Court, Legal Services Committee
is, hereby, directed to pay a sum of Rs. 5,000/- (Rupees Five
Thousand) to Mr. Rudra Pratap Singh, learned Amicus Curiae,
as consolidated fee, for rendering his valuable professional
service for disposal of the present appeal.
23. 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)
mantreshwar/-
AFR/NAFR NAFR CAV DATE NA Uploading Date 16.03.2026 Transmission Date 16.03.2026