IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL APPEAL (SJ) No.220 of 2014

Arising Out of PS. Case No.-40 Year-2005 Thana- ARA MUFFASIL District- Bhojpur

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1.Binod Kumar, Son of Yogendra Ram

2.Yogendra Ram, Son of Late Ram Dayal Ram

3.Rajan Kumar @ Ranjan Kumar Son of Yogendra Ram.

4.Suchita Kumari, Daughter of Yogendra Ram.

All Resident of Village - Chitasenpur, P.S. - Ara Muffassil, District - Bhojpur

at Ara, Bihar.

... ... Appellant/s

Versus

The State of Bihar

... ... Respondent/s

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Appearance :

For the Appellant/s: Ms. Bhawana Jha, Advocate.

For the State : Mr. S. N. Prasad, APP.

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CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH

C.A.V. JUDGMENT

Date : 01-07-2026

Heard Ms. Bhawana Jha, learned counsel

appearing on behalf of the appellants and Mr. S. N. Prasad,

learned APP for the State.

2. The appellants have preferred the present criminal

appeals against the judgment of conviction and order of

sentence dated 19.04.2014 passed in Sessions Trial No. 84 of

2007, arising out of Ara Muffassil P.S. Case No. 40 of 2005 by

learned Adhoc Addl. Sessions Judge-II, Bhojpur at Ara,

whereby, the learned trial court has convicted the appellants

under Section 323/34 of the Indian Penal Code and sentence has

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been awarded to the appellants under Section 4 of the

Prohibition of Offenders Act for maintaining peace and they

were released on personal bail bond of Rs.1000/-.

3. The appellants have assailed the impugned

judgment primarily on the ground that the learned trial court has

failed to appreciate the evidence available on record in its

proper perspective and has erred in recording the conviction of

the appellants.

BRIEF FACTS OF THE CASE

4. The prosecution case, in brief, as per the written

report of the informant, is that on 27.02.2005 at about 7:30

A.M., when the informant had gone out for attending the call of

nature and was pouring water into the basin, thereafter, accused

Binod Kumar allegedly assaulted him with a khanti on his back,

whereupon he attempted to flee, but accused Yogendra Ram

assaulted him with a lathi on his head with an intention to kill,

causing head injuries. It is further alleged that accused Yogendra

Ram snatched a gold chain from the neck of the informant and

again assaulted him with a lathi. On hearing the alarm raised by

the informant, his mother arrived at the place of occurrence,

where the accused Binod Kumar allegedly had assaulted her

with an iron khanti causing injury on her right hand, resulting in

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bleeding, while accused Ranjan Kumar assaulted her with a lathi

and accused Suchitra Kumari caught hold of her hair and

slapped her. On the basis of the aforesaid written report, the

First Information Report was instituted. Chargesheet was

submitted against the accused persons under Sections 323, 324,

307, 379 and 34 of the Indian Penal Code and the trial court

convicted them for the offence under Section 323/34 of the

Indian Penal Code.

ARGUMENT ON BEHALF OF THE APPELLANTS

5. Learned counsel for the appellants submitted that the

impugned judgment of conviction and order of sentence is bad

both in law and on facts and is based merely on conjectures and

surmises. It was contended that the genesis of the occurrence

itself, as admitted by the informant, was a long-standing land

dispute and previous criminal litigations between the parties,

which furnished a strong motive for false implication. It was

further submitted that the prosecution examined only two

witnesses, out of whom P.W.1 Md. Pravej Khan @ Parvej did

not support the prosecution case and was declared hostile,

whereas P.W.2 Rahul Kumar, the informant, though supporting

the prosecution story, admitted in his evidence that the

occurrence stemmed from the land dispute and earlier criminal

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cases. Learned counsel further pointed out that in cross-

examination the informant stated that the place of occurrence

was situated at a distance of 20 to 50 feet from the house of

Yogendra Ram and that he was returning after attending the call

of nature when allegedly the appellants assaulted the informant

with an iron Khanti. According to the learned counsel, the

informant kept changing his version and there was no

consistency in his allegations, thereby rendering his testimony

unreliable and unworthy of credence.

6. Further case of the defence is that no occurrence had

taken place. The implication of the appellants is owing to dirty

village politics and previous enmity with the sole object of

sending them behind bars. The appellants belong to respectable

and educated families; appellant no.2 is a retired Judicial

Officer, appellant no.1 is a practicing Advocate at Patna,

appellant no.4 is a Teacher in Ekawan Primary School and

appellant no.3 is the proprietor of a Dairy. The appellants have

clean antecedent. Therefore, in the absence of reliable and

consistent evidence and in view of the admitted enmity between

the parties, the learned Trial Court erred in recording the

conviction, and the impugned judgment and order being

unsustainable in the eyes of law are liable to be set aside.

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ARGUMENT ON BEHALF OF THE STATE

7. 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

8. Heard the parties.

9. 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.

10. With reference to the aforesaid rival legal

contention urged on behalf of the parties, I have carefully

examined the case to find out whether the impugned judgment

warrants interference by this Court on the charge levelled

against the accused/appellants under Sections 307/34 and 323 of

IPC.

11. During the trial, the prosecution has examined

altogether two witnesses, namely:

(i). P.W.1 – Md. Pravej Khan @ Pravej (Hostile)

(ii). P.W.2 – Rahul Kumar (informant)

12. The prosecution has also relied upon following

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documents exhibited during the course of trial:

(I) Exhibit-1- Signature and writing on FIR

13. From the perusal of records, I proceed to analyse

the statements of the prosecution witnesses whether they have

supported the prosecution case.

(i) P.W.1- Md. Pravej Khan @ Pravej, has been

declared hostile by the prosecution as he has not supported the

prosecution case in material particulars.

(ii) P.W.2- Rahul Kumar (informant) - P.W.-2 has

supported the prosecution case as narrated in the written report

(Ext.-1) and has corroborated the date and time of occurrence,

i.e., 27.02.2005 at about 7:30 A.M. He has stated that while

returning from the bathroom after attending the call of nature,

accused Binod Kumar Ram assaulted him by means of an iron

rod and thereafter accused Yogendra Ram dealt a lathi blow on

his head, causing bleeding injury. On his alarm, his mother came

to rescue him, whereupon accused Binod Ram assaulted her by

means of a khanti causing injuries to her fingers. He has further

alleged that accused Yogendra Ram snatched away his golden

chain and that accused Rajan Ram and Suchitra Kumari also

participated in the assault. According to him, the occurrence

took place due to the existing land dispute between the parties.

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In his cross-examination, he admitted the pendency of civil and

criminal litigations between the parties and reiterated the

manner of occurrence. He also stated that his clothes were

stained with blood after the occurrence. Although the defence

suggested false implication on account of land dispute, nothing

substantial could be elicited to discredit his testimony. His

evidence supports the prosecution case regarding the date and

time, place and manner of occurrence as well as its genesis.

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 showed their

complete innocence.

Moot question for determination which arises before

this Court is whether conviction under Section 323/34 is

sustainable?

15. It would be appropriate to reproduce the

provisions of Sections 307/34 and 323 of I.P.C. for the sake of

convenience and better understanding of the facts, which are as

under:-

“307. Attempt to murder.—

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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.

Illustrations

(a) A shoots at Z with intention to kill him, under such

circumstances that, if death ensued. A would be guilty of

murder. A is liable to punishment under this section.

(b) A, with the intention of causing the death of a child of

tender years, exposes it in a desert place. A has committed

the offence defined by this section, though the death of the

child does not ensue.

(c) A, intending to murder Z, buys a gun and loads it. A has

not yet committed the offence. A fires the gun at Z. He has

committed the offence defined in this section, and if by such

firing he wounds Z, he is liable to the punishment provided

by the latter part of the first paragraph of this section.

(d) A, intending to murder Z by poison, purchases poison

and mixes the same with food which remains in A’s keeping;

A has not yet committed the offence defined in this section.

A places the food on Z’s table or delivers it to Z’s servant to

place it on Z’s table. A has committed the offence defined in

this section.

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.”

16. The Apex Court laid down the litmus test for

determination of nature of offence in Pulicherla Nagaraju v.

State of A.P. reported in (2007) 1 SCC (Cri) 500. In the facts

and circumstances of a particular case, the Court needs to decide

the pivotal question of existence of intention with care and

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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 byenmity 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."

17. 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

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weapon used is not a deadly weapon as

rightly contended by the learned counsel. The

whole occurrence was a result of a trivial

incident and in those circumstances the

accused dealt two blows on the head with a

lathi, therefore, it cannot be stated that he

intended to cause the injury which is

sufficient (sic). At the most it can be said that

by inflicting such injuries he had knowledge

that he was likely to cause the death. In

which case the offence committed by him

would be culpable homicide not amounting

to murder. We accordingly set aside the

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.”

18. 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.

19. Further to sustain a conviction under Section 307

IPC, the Apex Court in the case of Sivamani v. State, reported

in, 2023 SCC OnLine SC 1581, in paragraph no. 9 has 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

judgment, it was pointed out that ‘…The court has

to see whether the act, irrespective of its result, was

done with the intention or knowledge and under

circumstances mentioned in the section.’ The

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

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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.”

20. The record reveals that P.W.1 – Md. Pravej

Khan alias Pravej has been declared hostile during trial as he

has not supported the prosecution case on material particulars.

In absence of any reliable and independent corroboration from

other prosecution witnesses, the testimony of this witness loses

its evidentiary value for the purpose of establishing the guilt of

the accused/appellants. Accordingly, the evidence of P.W.1 is

not of much assistance to the prosecution case.

21. The prosecution case substantially rests upon

the testimony of P.W.2 – Rahul Kumar who is the victim and

informant of the case. The testimony of PW-2 who is the

informant attributes specific overt acts against the appellants,

however, his version is not free from inconsistencies.

Furthermore, the evidence suffers from infirmities in

investigation. In such circumstances, the prosecution version

does not inspire full confidence for sustaining the conviction of

the accused/appellants. It is also evident that the case arises out

of prior enmity between the parties. In such circumstances, the

possibility of exaggeration and false implication cannot be ruled

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out, and the prosecution has failed to establish, beyond

reasonable doubt, the common intention and specific

involvement of all the accused persons.

22. It is equally 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

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.

23. Admittedly, from the prosecution case itself, it

transpires that the genesis of the occurrence lay in a long-

standing land dispute and previous litigations between the

parties, a fact candidly admitted by P.W.2 – Rahul Kumar

(informant) in his evidence. However, the existence of prior

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enmity, by itself, cannot be a ground to discard the prosecution

case, particularly when the same also furnishes a plausible

motive for the occurrence. The alleged occurrence took place

when the informant was returning after attending the call of

nature, and P.W.2 has consistently narrated the manner of

occurrence both in the First Information Report and in his

deposition before the Court. Though P.W.1 – Md. Pravej Khan

@ Pravej did not support the prosecution case and was declared

hostile. In case of Neeraj Dutta Vs. State (Government of NCT

of Delhi) (Criminal Appeal No. 1669 of 2009), the Hon’ble

Supreme Court has held that the testimony of a hostile witness

does not render the entire prosecution case unreliable when

there is otherwise cogent and trustworthy evidence available on

record. The evidence of P.W.2 attributes specific overt acts to

the accused persons and nothing substantial could be elicited in

his cross-examination to discredit his testimony or to

demonstrate that he had falsely implicated the appellants. The

Hon’ble Supreme Court has held that merely because no

independent witness has been examined or because the parties

were on inimical terms does not, in the facts of the present case,

dilute the evidentiary value of the testimony of the informant,

particularly when his version regarding the date, time, place,

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genesis and manner of occurrence has remained substantially

consistent. The prosecution evidence clearly establishes that the

informant was subjected to assault by the accused persons and

sustained injuries during the occurrence. At the same time, the

materials on record do not establish the ingredients necessary to

attract the offence under Section 307 of the Indian Penal Code

or the allegation of robbery beyond reasonable doubt.

Nevertheless, the evidence is sufficient to prove that the accused

persons, acting in furtherance of their common intention,

voluntarily caused hurt to the informant and his mother.

24. I find that the facts of the present case are

squarely covered by the judgment passed by the Apex Court in

case of Sivamani (supra) and in view of the aforesaid

discussion of factual and legal aspects, It emerges from the

evidence available on record that the alleged occurrence took

place on account of the existing land dispute and previous

litigations between the parties. Merely because there was prior

enmity between the parties, the testimony of the injured

informant cannot be discarded, rather such enmity may

constitute a motive for the occurrence itself. Consequently, this

Court is of the considered opinion that the learned trial court has

rightly appreciated the evidence on record and correctly

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convicted the appellants under Section 323 read with Section 34

of the Indian Penal Code, and no interference with the

impugned judgment of conviction and order of sentence is

warranted.

25. The evidence on record discloses an assault

causing simple injuries by means of hard and blunt objects, but

do not establish the requisite intention or knowledge necessary

to attract the ingredients of Section 307 of the Indian Penal

Code. In such circumstances, the learned trial court has rightly

appreciated the oral and documentary evidence and correctly

come to the conclusion that the prosecution has succeeded in

proving the offence under Section 323 read with Section 34 of

the Indian Penal Code beyond reasonable doubt. Accordingly,

this Court finds no illegality or perversity in the impugned

judgment of conviction and the order of sentence warranting

interference in the present appeal.

26. In the background of the discussions made

hereinabove and on taking an overall view, the Impugned

judgment of conviction and order of sentence dated 19.04.2014

passed in Sessions Trial No. 84 of 2007, arising out of Ara

Muffassil P.S. Case No. 40 of 2005 whereby, the appellants have

been convicted under Section 323/34 of the Indian Penal Code,

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does not warrant interference so far as the finding of conviction

is concerned.

27. However, so far as, the sentence is concerned,

having regard to the facts and circumstances of the case and the

period already undergone by the appellants, the sentence

awarded to the appellants is modified and reduced to the period

already undergone by them and 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.

28. Accordingly, the present appeal stands partially

allowed.

29. Office is directed to send back the lower court

records along with a copy of the judgment to the learned District

Court forthwith.

mantreshwar/-

(Purnendu Singh, J)

AFR/NAFR

CAV DATE 16.06.2026

Uploading Date 01.07.2026

Transmission Date 01.07.2026