Ajay Yadav vs The State of Bihar

Heard the parties.

This appeal is being preferred against the Judgment of conviction dated 18.08.2015 and order of sentence dated 18.08.2015 passed in Sessions Trial No. 401 of 2010/ 166 of 2010 by learned Additional District Judge-2nd, Gaya, whereby the appellant has been convicted under Section 307 of the Indian Penal Code sentenced to undergo R-I, 10 years pay a fine of Rs. 10,000/- and in default of payment of fine to undergo simple imprisonment for a period of one years, and under Section 27 of Arms Act sentenced to undergo R-I, 5 years and pay a fine of Rs. 5,000/-(Rupees Five thousand) and in default of payment of fine undergo simple imprisonment for a period of 6 months, however all sentences have to run concurrently.

The appellant has 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 appellant.

The prosecution case in brief, is that on 11.06.2008 at about 7.30 pm, while the informant Arjun Yadav is standing in front of his house, the petitioner and co-accused Nageshwar Thakur allegedly abused him. When the informant objected, petitioner allegedly brought a country made pistol and fired two shots at him, one hitting his right arm and the other is upper left chest. A further shot was also allegedly fired, causing panic among those present. Thereafter, the accused persons fled from the spot. The injured informant was taken for treatment and subsequently referred to different hospitals.

On the basis of the informant statement, Sherghati P.S. Case No.210 of 2008 was registered under Sections 341, 326 and 307 of the I.P.C. and Section 27 of the Arms Act. Cognizance was taken on 07.11.2008, and charges were subsequently framed against the appellant, who pleaded not guilty and claimed to be tried.

Learned counsel for the appellant has submitted that the impugned judgment suffers from serious errors in appreciation of evidence. It has been contended that there is substantial and unexplained delay in lodging the FIR; the alleged fardbyan, which is stated to be the foundation of the prosecution case, has not been exhibited; only the formal FIR has been exhibited; PW-3 statement was recorded at a place other than police station and several witnesses admittedly did not see the actual firing also the place of occurrence has not been satisfactorily established; the occurrence allegedly took place at about 7:30 pm in darkness and no source of light has been proved. Also, no firearm or cartridge was recovered; and there is no ballistic or forensic evidence connecting the appellant with the alleged weapon.

It has further been submitted that the medical evidence does not conclusively established firearm injury. The doctor has not opined that the injuries were caused by a firearm or that they were firearm entry wounds. It is submitted that the mere description of the injury as “blackish” cannot constitute sufficient medical evidence to establish a gunshot injury. It has also been contended that the injury report was prepared after considerable delay and that the medical evidence does not satisfactorily corroborate the prosecution version.

Learned APP on the other hand has supported the judgment of conviction and submitted that the injured witnesses has supported the prosecution case and that minor discrepancies in the testimonies of witnesses are natural. It has further been submitted that the factum of injury, coupled with the evidence regarding firing, sufficiently establishes the involvement of the appellant.

Heard the parties.

I have perused the lower court records and proceedings and also taken note of the arguments canvassed by the 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.

During the trial, the prosecution has examined altogether twelve witnesses, PW-1 namely, Birauch Das, PW-2 namely, Rohan Yadav , PW-3 namely, Sanjay Paswan, PW-4 namely, Kailash Yadav, PW-5 namely, Visheshar Paswan, PW-6 namely, Ram Avtar Yadav, PW-7 namely, Ram Chandra Yadav, PW-8 namely, Kishori Yadav, PW-9 namely, Rajendra Sharma, PW-10 namely, Arjun Yadav (Injured witness), PW-11 namely, Dr. Chaudhari Nandan Prasad (Medical Officer) and PW-12 namely, Shatrughan Chaudhari (I.O.).

The prosecution also exhibited following document during the trial to substantiate its case which are as:-

Exhibit 1 – Injury report

Exhibit-2 – Signature of S.H.O.

Before proceeding to examine the evidence of the witnesses it would be appropriate to reiterate the settled principle that the burden of proving the guilt of an accused rests throughout upon the prosecution. The accused enters the trial with the presumption of innocence and the said presumption continues unless the prosecution succeeds in establishing his guilt beyond reasonable doubt. The prosecution must stand on its own legs and cannot derive strength from any weakness in the defence evidence.

The expression “beyond reasonable doubt” does not mean proof beyond every fanciful or imaginary doubt. At the same time, where the evidence leads a reasonable doubt regarding the involvement of the accused, such doubt must enure to his benefit. In Gambhir Singh vs. State of U.P. [2025 SCC OnLine 365] the Hon’ble Supreme Court reiterated that where the circumstances emerging from the evidence, taken cumulatively, seriously then the credibility of the prosecution case and the guilt is not establish beyond reasonable doubt, the accused is entitled to acquittal.

It would be apposite to reproduce the relevant paragraph of Gambhir Singh Case (supra) which reads as:-

It is equally well-settled that every discrepancies in the testimony of a witness cannot be treated as fatal. Human memory is fallible and minor variations are natural. The Court, however, has to distinguish between discrepancies relating to peripheral matters and those which affect the substratum of the prosecution case. Where the discrepancies concerned the identity of the assailant, manner of occurrence, place of occurrence or the very nature of injury, they cannot be brushed aside merely by describing them as minor.

In the present case, PW-10, namely Arjun Yadav is the injured witness. He stated that on 11.06.2008, at about 7:00 pm, the appellant came abusing him and upon objection, went to his house, brought a pistol and fire at him. According to him, one shot hit his right palm and another hit his chest. There can be no quarrel with the proposition that the testimony of the injured witness ordinarily carries considerable weight, since his presence at the place of occurrence is normally established by the injury suffered by him. But the status of an injured witness does not render his testimony infallible or immune from scrutiny. His evidence must still be tested against the surrounding circumstances and the medical and other evidence on record. The evidence of PW-10 has to be considered in the backdrop of the admitted circumstance that the alleged occurrence allegedly took place at about 7:00 or 7:30 pm and that it was dark. The prosecution has not established any specific source of light at the place of occurrence. Although the appellant was known to the witnesses, the court cannot proceed merely on the assumption that identification was necessarily possible. The prosecution must establish that the witness had sufficient opportunity to see and identify the assailant.

PW-1, namely, Birauch Das stated that he was milking a cow/buffalo when he heard the sound of firing and thereafter proceeded towards the house of the injured. He stated that he saw the appellant running away. His evidence, however, makes it clear that he did not witness the actual firing. His testimony, therefore, is essentially evidence of the post-occurrence conduct of the appellant and does not establish that he was the person who fired the alleged shots.

PW-2, namely, Rohan Yadav, father of the injured, stated that he was at his door and, after hearing the sound of firing, went towards the injured. He attributed the firing to the appellant. However, he also admitted that it was dark at the time of occurrence. His evidence regarding the actual firing, therefore, requires careful scrutiny, particularly when the prosecution has failed to establish the source of light at the spot.

PW-3, namely, Sanjay Paswan also stated that after hearing the sound of firing he went to the place of occurrence and found Arjun Yadav (PW-10) injured. He did not witness the actual firing. His evidence, therefore, is post-occurrence evidence insofar as the actual shooting is concerned. It is further significant that the statement of PW-3 was recorded at a place other than the police station. This circumstance, by itself, may not render his evidence inadmissible or unreliable. However, the prosecution has not satisfactorily explained the circumstances in which his statement came to be recorded at such place. In a prosecution case already suffering from other infirmities, this circumstance cannot be completely ignored while assessing the reliability of the prosecution evidence.

PW-4, namely, Kailash Yadav, brother of the injured, claimed to have witnessed the firing. He stated that the appellant fired at his brother and that the bullets struck his palm and chest. His evidence, however, reveals variations regarding the sequence of firing and the interval between the shots. Relationship with the injured is not, by itself, a ground for rejecting his testimony. Nevertheless, in the circumstances of the present case, his evidence has to be examined with greater care as the independent corroboration expected from the medical and physical evidence is lacking.

PW-5, namely, Visheshar Paswan stated that after hearing two gunshots he proceeded towards the place of occurrence and saw the injured lying there and the appellant running away. He admittedly did not see the firing. His evidence, therefore, is confined to the post-occurrence situation. Significantly, the Investigating Officer has stated that certain facts attributed to this witness in Court were not stated by him during investigation. Such omission assumes significance when the very circumstance of the appellant having been seen fleeing from the place of occurrence is relied upon to connect him with the shooting.

PW-6, namely, Ram Avtar Yadav claimed to have witnessed the occurrence and supported the prosecution case that the appellant fired at Arjun Yadav (PW-10). However, when his testimony is considered along with the evidence of the other witnesses regarding their respective positions and the time at which they reached the place of occurrence, the prosecution has not been able to satisfactorily establish whether he had actually witnessed the firing or reached the spot immediately thereafter.

PW-7, namely, Ramchandra Yadav stated that after hearing the sound of firing he went towards the house of Arjun Yadav (PW-10) and saw him lying injured. He also stated that he saw the appellant running towards the north. In cross-examination, however, he stated that his house was about 200 meters away and that it was somewhat dark. He further admitted that he did not see the appellant at the time of firing. His evidence, therefore, cannot be treated as direct evidence of the shooting.

PW-8, namely, Kishori Yadav also reached the place of occurrence after hearing the commotion and saw the injured. His evidence regarding the actual firing is based upon what he heard from others and is therefore hearsay insofar as the identity of the assailant is concerned. His evidence may establish that the injured was present at the spot, but it does not establish that the appellant was responsible for causing the injuries.

PW-9, namely, Rajendra Sharma also stated that he heard the sound of firing and saw Arjun Yadav (PW-10) injured. He did not see the appellant at the place of occurrence. Thus, his evidence also does not materially advance the prosecution case on the crucial question of identity of the assailant. It thus emerges from an overall consideration of the ocular evidence that a substantial number of witnesses relied upon by the prosecution did not actually witness the firing. Their evidence establishes that, after hearing the sound of firing or commotion, they reached the place of occurrence and found the injured there. Such evidence may established the occurrence of an incident resulting of an injury, but does not, by itself, establish the identity of the person who fired the alleged shots.

PW-11, namely, Dr. Chaudhari Nandan Prasad, who is the medical officer examined the injured and noted the injuries. However, he has not given a categorical opinion that the injuries were caused by a firearm. The injuries have not been specifically described as firearm entry wounds, nor has the doctor given a definite opinion regarding the weapon by which they were caused. The prosecution has sought to rely upon the description of the wound as “blackish”. In my considered view, such description, in the absence of any definite medical opinion regarding the nature and cause of the injury, cannot by itself be treated as conclusive proof of a gunshot injury. At the highest, the medical evidence establishes the existence of injury; it does not satisfactorily establish that the injury was caused by the alleged country-made pistol in the manner asserted by the prosecution. It is true that an opinion of a doctor that the injury was dangerous to life is not an indispensable requirement for establishing an offence under Section 307 of the I.P.C. The offence under Section 307 of the I.P.C. depends upon the intention or knowledge accompanying the act and the circumstances in which the act was committed. However, this principle cannot relieve the prosecution of its primary obligation to establish the act attributed to the accused. Before the question of intention arises, the prosecution must establish beyond reasonable doubt that the accused committed the act alleged against him.

PW-12, namely, Shatrughan Chaudhari is the I.O. in the present case. According to him, no cartridge, blood stain or sign of struggle was found at the alleged place of occurrence. No firearm was recovered from the appellant. No cartridge was recovered from the spot and no ballistic or forensic evidence has been produced connecting the appellant with the alleged weapon.

At this stage, it would be appropriate to notice the law regarding non-recovery of the weapon. The Supreme Court in Goverdhan & Anr. v. State of Chhattisgarh [(2025) 3 SCC 378] has reiterated that non-recovery of the weapon of offence is not, by itself, fatal to the prosecution where there is direct, credible and unimpeachable ocular evidence supported by other circumstances. The Court has also emphasised that reasonable doubt must be a real and substantial doubt arising from the evidence and not a fanciful one.

It would be apposite to reproduce the relevant paragraph nos. 82 and 83 of Goverdhan Case (supra) which reads as under:-

The present case, however, stands on a different footing. The absence of recovery of the weapon is not being treated as an isolated ground for acquittal. It assumes significance because it is accompanied by doubtful ocular evidence regarding the actual firing, absence of ballistic corroboration, inconclusive medical evidence regarding firearm injury and uncertainty surrounding the place of occurrence. Thus, the non-recovery of the alleged weapon is one circumstance forming part of the cumulative assessment of the prosecution case. The prosecution case is further rendered doubtful by the circumstances relating to the place of occurrence. The Investigating Officer has described the alleged place of occurrence as a dirt road near the house of the informant. However, the evidence does not satisfactorily establish the precise position of the appellant, the injured and the witnesses at the time of firing. More importantly, no cartridge, bloodstain or other physical indication of firing was found at the alleged place of occurrence.

The question of identification also assumes importance. The alleged occurrence took place at about 7:30 P.M. and the witnesses themselves have admitted that it was dark. No source of artificial light has been proved. The prosecution has sought to overcome this difficulty by contending that the appellant was known to the witnesses. While prior acquaintance may, in an appropriate case, assist identification in poor light, the Court has to examine whether the witness actually had sufficient opportunity to identify the assailant. The prosecution cannot be permitted to substitute assumption for evidence.

The delay in lodging the FIR is another circumstance which requires consideration. The occurrence is alleged to have taken place on 11.06.2008. According to the prosecution, the written statement/fardbeyan of the injured was recorded on 12.06.2008 while he was undergoing treatment. However, the formal FIR came to be registered at Sherghati Police Station only on 01.07.2008.

Delay in lodging the FIR is not invariably fatal. Where there is a satisfactory explanation for the delay, the Court may legitimately accept the prosecution version notwithstanding such delay. But where the delay remains unexplained and the prosecution case is otherwise attended by material infirmities, such delay becomes a relevant circumstance in assessing the credibility of the prosecution version.

In the present case, the fact that the injured was undergoing treatment may explain why his statement was recorded at the hospital. It does not, however, satisfactorily explain the considerable interval between the alleged recording of the statement and the registration of the formal FIR. The delay therefore assumes significance, particularly when the earliest version relied upon by the prosecution itself has not been properly brought on record.

The alleged fardbeyan, which according to the prosecution constituted the earliest account of the occurrence, has not been exhibited. What has been exhibited is the formal FIR. The distinction is important. The FIR is not substantive evidence of the truth of the facts contained therein. The Supreme Court in Goverdhan (supra) has reiterated that the FIR is not a piece of substantive evidence, though it may be used as a relevant circumstance for the purposes recognised by law when duly proved.

Therefore, the formal FIR cannot be used as a substitute for the unproved fardbeyan so as to supply substantive proof of the manner of occurrence or the identity of the assailant. In the present case, where the prosecution relies upon the alleged fardbeyan as the earliest version of the occurrence, its non-exhibition assumes significance, particularly in the background of the substantial delay in registration of the formal FIR and the subsequent variations appearing in the oral evidence.

The evidence of the Investigating Officer also brings out omissions in the statements of certain witnesses recorded during investigation. It is true that every omission cannot be treated as a contradiction. Witnesses may forget minor details with passage of time, particularly where their evidence is recorded several years after the occurrence. However, an omission relating to a material fact which is subsequently introduced in Court cannot be brushed aside merely as a natural variation.

The Supreme Court has recently reiterated that significant omissions in statements recorded during investigation, when they relate to material facts introduced subsequently in Court, can affect the credibility of the witness. The principle has been reaffirmed in Ramu Appa Mahapatar v. State of Maharashtra reported in (2025) 3 SCC 565, where material omissions in the statements recorded under Section 161 Cr.P.C. were considered while assessing the reliability of the prosecution witnesses.

It would be apposite to reproduce the paragraph no.32 of Ramu Appa Mahapatar Case (supra) which reads as under:-

In the present case, therefore, the omissions appearing in the statements of the witnesses cannot be considered in isolation. They have to be assessed along with the other circumstances, namely, the fact that several witnesses did not see the firing, the doubtful identification in darkness, the absence of physical evidence at the alleged place of occurrence and the inconclusive medical evidence.

It is necessary to emphasis that the prosecution is not required to prove its case with mathematical precision. Nevertheless, where discrepancies concern the core of the prosecution case, namely, the identity of the assailant, the manner of occurrence and the nature of the injuries, they cannot be dismissed merely as minor discrepancies.

On a cumulative appreciation of the evidence, this Court finds that the prosecution has undoubtedly established that Arjun Yadav suffered injuries and that some incident involving firing or a commotion took place at the relevant time. But the prosecution has failed to prove beyond reasonable doubt that it was the appellant who fired the alleged shots and caused those injuries

The injured witness attributes the firing to the appellant, but his testimony is required to be considered in the context of the darkness at the place of occurrence and the absence of satisfactory corroboration. Several witnesses who have been relied upon by the prosecution admittedly did not see the actual firing. Some witnesses only saw the appellant allegedly running away after the occurrence. The medical evidence does not conclusively establish firearm injury. The alleged weapon has not been recovered and there is no ballistic evidence. No cartridge or bloodstain was found at the alleged place of occurrence. The prosecution has not satisfactorily established the place of occurrence. There is substantial delay in registration of the FIR and the alleged fardbeyan has not been exhibited.

None of these circumstances, considered separately, may necessarily be fatal. But criminal jurisprudence requires the Court to consider the evidence cumulatively. A chain which contains several missing links cannot be treated as complete merely because each individual circumstance, viewed in isolation, may admit of an innocent explanation.

In Gambhir Singh Case (supra), the Supreme Court adopted precisely such a cumulative approach and held that where the circumstances emerging from the prosecution evidence seriously dent the credibility of the prosecution case and guilt is not established beyond reasonable doubt, the conviction cannot be sustained.

The principle that suspicion, however strong, cannot substitute proof is fundamental to criminal jurisprudence. The Court may have a suspicion regarding the involvement of the appellant, but suspicion cannot take the place of legal proof. Where the evidence leaves a reasonable possibility consistent with the innocence of the accused, the accused is entitled to the benefit of doubt.

In the present case, the doubts arising from the prosecution evidence are not fanciful or imaginary. They arise from the evidence led by the prosecution itself. The Court is therefore unable to hold that the prosecution has established the guilt of the appellant beyond reasonable doubt.

So far as the conviction under Section 307 of the Indian Penal Code is concerned, it is correct that the nature of the injury alone is not determinative and that a conviction can follow even where the victim does not sustain a fatal or grievous injury. However, the prosecution must first prove the act of the accused and the requisite intention or knowledge. Since the prosecution has failed to establish beyond reasonable doubt that the appellant fired the alleged shots, the requisite foundation for his conviction under Section 307 is absent.

Likewise, the conviction under Section 27 of the Arms Act cannot be sustained merely on the allegation that a firearm was used. The prosecution has to establish the use of a firearm by the accused. In the present case, there is no recovery of the alleged firearm, no cartridge, no ballistic evidence and no definite medical opinion establishing firearm injury. In the circumstances already discussed, the charge under Section 27 of the Arms Act also remains unproved beyond reasonable doubt.

The learned trial Court, while acquitting the appellant of the offences under Sections 341 and 326 of the Indian Penal Code, has itself noticed deficiencies in the prosecution evidence. Those deficiencies assume greater significance when the evidence is examined for the purpose of sustaining the conviction under Section 307 of the Indian Penal Code and Section 27 of the Arms Act.

A criminal Court cannot convict merely because the prosecution version appears probable. The standard is proof beyond reasonable doubt. Where two views are reasonably possible on the evidence and one of them is consistent with the innocence of the accused, the view favorable to the accused must prevail.

In the present case, the cumulative effect of the unexplained delay in registration of the FIR, non-exhibition of the alleged fardbeyan, doubtful circumstances surrounding the place of occurrence, darkness at the time of occurrence without an established source of light, the fact that several witnesses did not actually witness the firing, material omissions in the statements of witnesses, absence of recovery of the alleged weapon or cartridge, absence of ballistic corroboration and inconclusive medical evidence regarding firearm injury creates a reasonable doubt regarding the prosecution case.

The prosecution has, therefore, failed to discharge the burden of proving the guilt of the appellant beyond reasonable doubt. The appellant is consequently entitled to the benefit of doubt.

Accordingly, the appeal stands allowed

The judgment of conviction of the appellant, as recorded by the learned trial court under Section 307 of the Indian Penal Code and Section 27 of the Arms Act, is hereby set-aside. The impugned judgment of conviction and order of sentence dated 18.08.2015 passed by learned Additional District Judge-2nd, Gaya in Sessions Trial Case No. 401 of 2010/ 166 of 2010, are hereby set-aside. The appellant/accused is acquitted of the charge levelled against him under Section 307 of the Indian Penal Code and Section 27 of the Arms Act by extending to him the benefit of reasonable doubt.

Since the appellant is on bail, he is discharged from his liabilities of respective bail bonds. Sureties stand discharged.

Before the assistance rendered by the learned Senior Advocate, Mr. Gouranga Chatterjee, this Court was duly assisted by learned Amicus Curiae, Mr. Sandeep Kumar, this Court deems it appropriate to pay Rs. 5,000/- (Rupees Five Thousand Only) in Criminal Appeal (SJ) No. 634 of 2015 as consolidated fee for rendering his valuable professional service for the disposal of present appeal, upon production of copy of this judgment.

Fine, if any paid, be returned to the appellant henceforth. The appeal stands allowed.

TCR, if any, be sent back to the learned trial court along with a copy of this judgment immediately.