Md. Kalimuddin @ Kalim vs The State of Bihar & Ors.

(Per: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH)

The present appeal has been preferred under Section 372 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the “CrPC”) against the judgment of acquittal dated 12.02.2021, passed by the learned Court of Sessions Judge, Araria (hereinafter referred to ‘the learned Trial Judge”) in Sessions Trial No. 606 of 2013 (arising out of Jokihat P.S Case No.257 of 2008) whereby and whereunder the respondent nos.2 to 11 have been acquitted by the learned Trial Judge from the charges levelled against them under Sections 147, 148, 149, 324/149 and 307/149 Indian Penal Code (hereinafter referred to as the “IPC”), while the learned Trial Judge having also acquitted them for compoundable charges under Sections 341/149, 323/149, 379/149 and 504/149 of the IPC.

We had requested the learned counsel for the appellant to bring on record a copy of the FIR and copies of deposition of witnesses, whereupon the learned counsel for the appellant has filed supplementary affidavits bringing on record the same.

The case of the prosecution, in brief, as per the fardbeyan of Kalimuddin (informant-the appellant herein) recorded by the Sub-Inspector of Police, Ramsurat Prasad of Araria (town) Police Station on 16.12.2008 at 14:15 hrs. is that on the same day, i.e. 16.12.2008, at about 7:00 am, he had gone to meet Dr. Mohammad, resident of Chakai since he was working as an LIC agent. After meeting the said doctor, the informant had come upon the road in order to proceed towards Araria, however when he had reached near the house of Israrul and others situated by the roadside at village Chakai, the respondent nos. 2 to 11 had arrived there and had started abusing him and assaulting him indiscriminately with fists and blows as well as by means of lathi, iron rod and chain. It is alleged that Israrul had assaulted the informant on his neck, hands and legs with iron rod and injured him. Thereafter, Raja had assaulted him with lathi leading to him sustaining injury on his nose as also blood had started oozing out, whereafter the informant fell down on the ground. Nonetheless, the accused persons continued assaulting him with lathi and other weapons while he was lying there on the ground. During the course of the occurrence, the accused persons were exhorting one another to kill the informant, whereafter Raja had snatched a sum of Rs.5000/- in cash from his pocket, while Israrul had taken away his Titan wrist watch worth of Rs 2200/- as also Israrul had snatched silver chain weighing approximately five tola from the neck of the informant. It is also alleged that all the accused persons were exhorting each other to assault the informant with three-nut weapon in such a manner so as to cause his death. However, in the meantime, a large number of persons had assembled there and the life of the informant was somehow saved, whereafter he was taken to Jokihat Hospital for medical treatment but considering his condition he was referred to Araria Hospital where the treatment was being done at the time of recording of his statement by the police. The informant has also alleged that litigation is going on in between the parties from before.

On the basis of the said fardbeyan of the informant, namely Kalimuddin, an FIR bearing Jokihat P.S Case no 257 of 2008 was registered on 17.12.2008 at 16:15 hrs. under Sections 147/148/149/341/323/324/307/379 and 504 of IPC against the respondent nos. 2 to 11. A bare perusal of impugned judgment would show that after the charge-sheet was filed by the Investigating Officer, finding the case to be true, the learned CJM, Purnea had taken cognizance for the offences as per the charge-sheet dt. 4.12.2009, whereafter the case was committed to the Court of Sessions, Purnia vide order dated 16.03.2013 and was numbered as Sessions Trial No.606 of 2013, whereupon the same was transferred to the learned Assistant Sessions Judge-II, Araria for trial and disposal. The Ld. Trial Judge had then framed charges against respondent nos.2 to 11 vide order dt. 13.08.2023 U/s. 147/148/149/341/323/324/307/379 & 504 IPC to which they pleaded not guilty and claimed to be tried.

During the trial, the prosecution had examined altogether fourteen witnesses, i.e. PW-1 Md Mainuddin (co-villager), PW-2 Md. Uman (co-villager), PW-3 Md. Munaf (co-villager), PW-4 Rashid (co-villager), PW-5 Taslimuddin (Father of the Informant), PW-6 Kalimuddin @ Kalim (Informant/Appellant), PW-7 Hasim (co-villager), PW-8 Md. Musfid (co-villager), PW-9 Sarfuddin (co-villager), PW-10 Md. Naiyar Alam (co-villager), PW-11 Md. Sarwar Alam (co-villager), PW-12 Dr. Sudarshan Jha (Doctor who has examined the injuries of the informant), PW-13 Tabarkat (co-villager) and PW-14 Md. Jawed Alam (co-villager).

The prosecution, by way of documentary evidence, had proved the following documents, which were marked as exhibits during the course of the trial :-

After completion of the evidence of the prosecution, the Ld. Trial Judge recorded the statement of the respondents nos. 2 to 11 under Section 313 of the CrPC for enabling them to personally explain the circumstances appearing in the evidence against them, however they claimed to be innocent and stated that they have been falsely implicated in the instance case.

The learned Trial Judge, upon appreciation, analysis and scrutiny of the evidence adduced at the trial has acquitted the accused persons i.e. the respondents nos. 2 to 11, by observing that due to lack of cogent material evidence, prosecution has miserably failed to prove the charges under Sections 147, 148, 149, 324/149 and 307/149 IPC. Further the Ld. Trial Judge has acquitted the accused persons for compoundable charges under Sections 341/149, 323/149, 379/149 and 504/149 I.P.C under sub-section (8) of Section 320 of the Cr.P.C.

The learned counsel for the appellant has submitted that PW-6 Kalimuddin @ Kalim, i.e. the informant has fully supported the occurrence and is an injured witness, hence his testimony is sufficient to convict the respondent nos. 2 to 11. He has further submitted that in fact, PW-13 Tabarkat has also supported the incident which further goes to corroborate the complicity of the respondent nos.2 to 11 in the alleged occurrence, thus it is submitted that the impugned judgment of acquittal dated 12.02.2021, passed by the learned Trial Judge is perverse and fit to be set aside.

The Ld. Additional Public Prosecutor for the State, Mr. Satya Narayan Prasad has submitted that as far as PW-1, PW-2, PW-3, PW-4, PW-5, PW-7, PW-8, PW-9, PW-10, PW-11 and PW-14 are concerned, they have either turned hostile or have not supported the case of the appellant as set out in the fardbeyan leading to filing of the aforesaid FIR. He has further submitted that the Investigating Officer has not been examined, hence the veracity of the testimony of PW-6 & PW-13 has not stood corroborated. It is next submitted that the medical evidence does not support the ocular evidence of PW-6, hence there is no perversity in the impugned judgment of acquittal dt. 12.02.2021 and the view taken by the Ld. Trial Judge cannot be said to be completely unsustainable and not a probable view, apart from the fact that the prosecution has failed to prove the guilt of the accused persons before the learned Trial Court.

Having heard the learned counsel for the appellant and the learned Additional Public Prosecutor for the State, we find that this Court is required to consider as to whether the impugned judgment of acquittal requires any interference by this Court. In light of this, we have perused the impugned judgment of the learned Trial Judge, the entire materials on record including the evidence i.e. ocular and documentary led by the prosecution and have given a thoughtful consideration to the rival submissions made by the learned counsel for the parties. Before proceeding further, it is necessary to cursorily discuss the evidence led by the prosecution.

PW-1 Md Mainuddin, PW-2 Md Uman and PW-3 Md. Munaf have been declared hostile by the prosecution, inasmuch as they have stated that they have no knowledge about the occurrence, hence there is no need of discussing their testimony.

PW-4 Rashid has stated in his examination-in-chief that the occurrence dates back to 8-9 years when a scuffle had taken place in between the informant and the accused persons and during the alleged occurrence, the accused Israrul had inflicted lathi blow on the head of the informant causing head injury, however in paragraph nos. 8, 9 and 11 of his cross-examination he has stated that he has not witnessed the occurrence with his eyes rather he has only heard about the alleged occurrence as also he has stated that he does not know as to how the informant had sustained injury on his head. Thus, we find that the testimony of PW-4 cannot be relied upon for the purpose of convicting the respondent nos. 2 to 11.

PW-5 Taslimuddin has stated in his examination-in-chief that at the time of occurrence, he was at his home and a commotion had taken place at Hariya Chowk on the southern side where he had gone, whereupon he saw that the accused Javed, Israrul and Raja and 5-6 other persons were assaulting his son Kalimuddin by lathi leading to him sustaining injury on his neck. However, in paragraph no 4 of his cross-examination, he has stated that he has not seen the occurrence with his own eyes, rather he had heard about the same. In his cross-examination, PW-5 has also admitted that the place of occurrence is situated at a distance of half a kilometer from his house and at the time of occurrence, he was not present at the place of occurrence.

A bare perusal deposition of PW-7 Hasim would show that he is a hearsay witness and he had not seen the occurrence with his own eyes. In paragraph nos. 6 and 7 of his cross-examination he has stated that neither he has any knowledge about the occurrence in question nor the police had recorded his statement and in paragraph nos. 8 and 9 of his cross-examination he has stated that he has not even heard about the occurrence from any person, thus no reliance can be placed on this witness.

Now coming to PW-8 Md. Musfid, we find from perusal of his deposition that he is also a hearsay witness. In paragraph no 4 of his cross-examination, he has stated that he was not present at the place of occurrence, thus no reliance can be placed on this witness as well.

PW-9 Sarfuddin is also a hearsay witness and he has stated in his testimony that he has got no idea as to whether the informant was injured or not and he had not seen the informant being physically assaulted since he was not present at the time and place of occurrence. In paragraph no.4 of his cross-examination, PW-9 has stated that no occurrence of assault had taken place with the informant, thus we find that even PW-9 has not supported the occurrence in question.

Now coming to PW-10 Md. Naiyar Alam, we find that he has stated in his testimony that the police had not recorded his statement and in para nos. 6, 7 and 8 of his cross-examination he has deposed that he was not present at the time of the occurrence and no assault had taken place in his presence, thus we find that PW-10 has also not supported the occurrence in question.

PW-11 Md. Sarwar Alam has stated in his testimony that at the time of the occurrence, he was at his home and he had heard that verbal spat had taken place in between the accused persons and the informant. In paragraph no.2 of his examination-in-chief, he has denied the suggestion that the accused persons had assaulted the informant and that he was in the Government Hospital and in paragraph no. 5 of his cross-examination, PW-11 has stated that he was not present at the time of occurrence and he has got no personal knowledge about the occurrence, thus we find that PW-11 has also not supported the occurrence in question.

PW-12 Dr. Sudarshan Jha is the doctor, who had examined the injuries of the informant on 16.12.2008 while he was posted at Araria hospital as Medical Officer and he had found the following injuries:-

PW-12 has opined that age of injury is within 24 hours, weapons used are hard blunt substance except injury No. (iv) and the nature of injury No. (i) and (iii) is simple while injury number (ii) is pressing of neck and injury No. (iv) is sharp cutting. PW-12 has stated that the injury report is in his writing and bears his signature, which he has identified and the same has been marked as Exhibit-2.

PW-13 Tabarkat has stated in his testimony that the occurrence dates back to 12 years in the morning at 7:00-7:30 a.m when he was washing his face at his doorstep and then he heard commotion as also heard that the informant was being assaulted, whereafter he ran towards the said place and saw that Israrul, Javed, Ibral, Raja, Yusuf, son of Yusuf and others, totaling 10-12 persons in all were assaulting the informant. Thereafter, the informant was picked up and taken to Jokihat hospital from where he was referred to Araria hospital. In paragraph no.11 of his cross-examination, PW-13 has stated that he cannot say as to who had assaulted whom but the ground was smeared with blood. In para no.7 of his cross-examination PW-13 has stated that in between them and the accused persons no land dispute was ever existing.

PW-14 Md. Jawed Alam has stated that the occurrence in question dates back to 8-9 years at 7:00-7:30 a.m when he was at his home. He has also stated that the informant was coming from somewhere, whereupon 10-12 person including Israrul, Raja and others started assaulting him with rod and sticks, leading to oozing out of blood, whereafter he had fallen on the ground and then the persons present there had taken him to hospital for treatment. In para no.10 of his cross-examination, PW-14 has stated that when he reached at the place of occurrence quarrel had finished. In para nos.6 and 8 of his cross-examination, he has stated that he does not know the date & time of occurrence and at the time of occurrence, he was at his home.

Now coming to PW-6 Kalimuddin @ Kalim, i.e. the informant of this case, he has stated in his examination-in-chief that the occurrence dates back to 11 years in the morning at about 7:00 a.m when he was going to catch a vehicle to go to Araria and then respondent nos. 2 to 11 came and caught hold of him, whereafter they started abusing him as also assaulted him with iron rod, chain and other weapons resulting in him being injured and then he fell on the ground. Thereafter, Raja had taken out a sum of Rs.5000/- from the pocket of PW-6, Ibrar had snatched his wrist watch and Israrul had snatched his silver chain. In paragraph no.4 of his examination-in-chief, PW-6 has stated that he had sustained injury on his head resulting in his head being cracked as also he has sustained injury on nose and mouth and blood started oozing out. He has also stated that he had received injury on his neck. He has next stated that the accused persons had assaulted him with the intention of killing him and when he had fallen on the ground, the accused persons were saying that PW-6 is still alive, hence he should be shot by three-nut, however in the meantime people came and saved him and then he was taken to hospital. In paragraph no.11 of his cross-examination, PW-6 has stated that Israrul was holding iron rod while Raja was holding three-nut and Ibrar was holding chain in his hand. He has stated that Ibrar had assaulted him on his neck, Raja had assaulted him on his chest, Israrul had assaulted on his head and other persons had also assaulted him resulting in him being drenched with blood, whereafter he had become unconscious and had regained consciousness at Araria Hospital, where he had given his statement to the police. In paragraph no.15 of his cross-examination, PW-6 has stated that he has got no land dispute with the accused persons. In para no.16 of his cross-examination, PW-6 has stated that when money was taken out from him, he was conscious, however he has stated that Raja took out the money. In paragraph no.17 of his cross-examination, PW-6 has stated that at the place of occurrence several villagers were present, however he was not in a position to name them at the time of occurrence.

Having perused the evidence on record, we find that as far as PW-1 Md. Mainuddin, PW-2 Md. Uman and PW-3 Md. Munaf are concerned, they have been declared hostile while PW-4 Rashid, PW-5 Taslimuddin, PW-7 Hasim, PW-8 Md. Musfid, PW-9 Sarfuddin, PW-10 Md. Naiyar Alam, and PW-11 Md. Sarwar Alam are concerned, either they have stated to have not seen the incident or they have not supported the occurrence in question or they have feigned ignorance about the incident or they have denied that any assault or scuffle, as alleged had taken place or are hearsay witnesses, as is apparent from their testimonies which have been discussed hereinabove in the preceding paragraphs.

Now coming to PW-5, i.e. the father of the informant, we find that he has stated in paragraph no.4 of his cross-examination that he had heard that quarrel had taken place and during the course thereof while his son was running away, he had fallen down and got injured. As far as PW-14 Md. Jawed Alam is concerned, we find from his testimony that he has stated in paragraph no.8 of his cross-examination that he was at home at the time of incident, hence he had also not seen the occurrence in question. As regards PW-13 Tabarkat, we find from his testimony that though he has stated in his examination-in-chief that Israrul, Javed, Ibral, Raja, Yusuf and son of Yusuf, as also others totaling 10-12 persons in all were assaulting the informant, however simultaneously he has also stated that at the time of occurrence he was at home and was washing his face, whereafter upon hearing an alarm that the informant is being assaulted, he had ran and gone there, apart from having stated in paragraph no.11 of his cross-examination that he cannot say as to who had assaulted how much, as far as the informant is concerned. He has also stated in paragraph no.7 of his cross-examination that there was land dispute between the parties. In fact, PW-13 has also stated in his examination-in-chief that upon hearing alarm and coming to know that the informant is being assaulted, he had ran and gone to the place of occurrence, where he saw the accused persons assaulting the informant, however subsequently he has stated that when he and others had gone at the place of occurrence, the accused persons who were assaulting the informant had ran away. Thus, we find that the testimony of PW-13 is full of discrepancies and contradictions and apparently, he is not an eye witness, hence his testimony cannot be relied upon to fasten criminal liability upon the respondent nos.2 to 11. As regards the testimony of PW-6 Kalimuddin @ Kalim, who is an injured witness as also the informant of this case, we find that his presence at the place of occurrence cannot be doubted, however it is a settled law that the evidence of even an injured witness does not acquire an irrebuttable presumption of truth and the same should withstand scrutiny, particularly where material embellishments or inconsistencies occur. In this regard, reference be had to a judgment rendered by the Hon’ble Apex Court in the case of Indira Devi & ors. v. State of H.P., reported in (2016) 12 SCC 770, paragraph no.7 whereof is reproduced herein below:

In this context, we would now consider the testimony of PW-6 Kalimuddin @ Kalim, bare perusal whereof would show that the same suffers from material discrepancies inasmuch as it does not depict as to who had assaulted him with what weapon and on which part of the body. In fact, PW-6 has stated that he was assaulted by Ibrar on his neck, by Raja on his chest, by Israrul on his head and by other persons, however a bare perusal of testimony of PW-12 Dr. Sudarshan Jha, who had examined the injuries of the informant, would show that as far as chest is concerned, no injury has been found whereas simple injuries have been found on the side of neck although it has been alleged that Ibrar was holding chain in his hand while Raja was holding three-nut in his hand and Israrul was holding iron rod in his hand. As regards the injury on the head of the appellant, allegedly inflicted by Ibrar by iron rod, we find from the testimony of the doctor, i.e. PW-12 that he has not found any injury on the head of PW-6. In fact, PW-6 has categorically stated in paragraph no.4 of his examination-in-chief that he was assaulted on his head resulting in breaking/cracking of his head as also he was assaulted on his nose and mouth resulting in blood oozing out from there, however the testimony of PW-12, i.e. the doctor would show that no injury has been sustained either on head or nose or mouth of PW-6. We may also point out that nowhere in his deposition, PW-6 has stated that any injury was inflicted on his thigh, however the doctor has found sharp cutting injury on right side of lower end of medial side of thigh of PW-6 and moreover, it is apparent from the testimony of PW-6 that he has not alleged that any of the accused persons were carrying any sharp cutting weapon. Thus, we find that the testimony of PW-6 is full of contradictions and his ocular evidence is not supported by medical evidence. It is a well settled principle of law that credible ocular evidence normally prevails over medical opinion and medical evidence is ordinarily corroborative in nature but where the ocular version is itself uncertain and the medical evidence renders the alleged manner of assault materially doubtful, the inconsistency assumes significance. In this connection, reference be had to a judgment rendered by the Hon’ble Apex Court in the case of Ram Narain Singh v. State of Punjab, reported in (1975) 4 SCC 497, paragraph no.14 whereof is reproduced herein below:-

With regard to the aforesaid proposition of law, we would refer to yet another judgment rendered by the Hon’ble Apex Court in the case of Gangabhavani v. Rayapati Venkat Reddy, reported in (2013) 15 SCC 298, paragraphs Nos.11 and 12 whereof are reproduced herein below:

Reference be also had to yet another judgment rendered by the Hon’ble Apex Court in the case of Sri Chikkegowda & Ors. v. State of Karnataka etc., reported in 2025 SCC OnLine SC 2190.

Thus, the evidence of PW-6, PW-13 and PW-14 does not merely contain peripheral discrepancies attributable to lapse of time, rather material variations emerge concerning the identity of the individual assailant, weapon allegedly carried, part of the body assaulted, presence of the witnesses at the actual time of occurrence, sequence of events immediately thereafter and existence of previous dispute between the parties. These discrepancies, when considered cumulatively, materially impair the informant’s/prosecution’s attempt to establish the manner of occurrence and individual participation of the accused beyond reasonable doubt.

We further find that the prosecution has failed to examine the Investigating Officer of this case, especially in a case where most of the witnesses have either turned hostile or not supported the occurrence and independently of the investigation the testimony of other witnesses is not enough to establish the case beyond all reasonable doubts. However, we find that it is a well settled law that non-examination of the Investigating Officer is not fatal to the case of the prosecution but only in cases where no material contradictions have been brought out. It is equally a well settled law that the evidence of the Investigating Officer is required for corroboration and contradictions of the other material witnesses as he is the one who links and presents them before the Court. It is also a settled law that it is of utmost importance to prove all major contradictions in the form of material omissions in accordance with the procedure as established under Section 145 of the Indian Evidence Act and bring them on record, inasmuch as if a witness is not confronted with that part of the statement with which the defence wanted to contradict him, then the court is precluded from making use of statements made before the Police which though may have stood proved in compliance of Section 145 of the Indian Evidence Act. Thus, we find that examination of Investigating Officer was necessary in the present case and would have been significant since it would have provided satisfactory clarification regarding which the witnesses adduced their statements under Section 164 of the CrPC before the Police. Further, the material omissions and contradictions in those statements, exact case and physical condition of place of occurrence, investigating finding concerning blood at the spot, recovery of weapon, etc. and the circumstances surrounding the delayed statement of witnesses and other aspects of the investigation capable of testing the competing versions of the prosecution witnesses could have been unfolded. Thus, omission of examination of the Investigating Officer in the present case further bolsters the reasonable doubt already arising from substantive evidence and the same assumes material significance since his examination was essential to prove contradictions or omissions in the statements of prosecution witnesses, establish material aspects of investigation, or remove prejudice arising from disputed facts concerning the place and manner of occurrence. In this regard, reference be had to the following judgments rendered by the Hon’ble Apex Court in various cases from time to time:-

Yet another aspect of the matter is as to under what circumstances, it is permissible for the Appellate Court to interfere with the finding of the learned Trial Court and reverse a finding of acquittal. It is a well-settled law that unless and until the finding of the learned Trial Court is found to be perverse or illegal/ impossible, it is not permissible for the Appellate Court to interfere with the same and in order to reverse a finding of acquittal, the view taken by the learned Trial Court must be held to be completely unsustainable and not a probable view. Reference in this connection be had to a judgment rendered by the Hon’ble Apex Court in the case of Nikhil Chandra Mondal vs. State of West Bengal, reported in (2023) 6 SCC 605 as also to the one rendered by the Hon’ble Apex Court in the case of Vijay Singh @ Vijay Kumar Sharma vs. The State of Bihar, reported in 2024 SCC Online SC 2623.

It would be apt to refer to yet another judgment rendered by the Hon’ble Apex Court in the case of Rajesh Prasad vs. State of Bihar & Anr., reported in (2022) 3 SCC 471, paragraphs No. 22, 27 to 29 and 31 whereof are reproduced herein below:-

In the case of Babu Sahebagouda Rudragoudar & Others vs. State of Karnataka, reported in (2024) 8 SCC 149, the Hon’ble Apex Court, after referring to the relevant precedent, has observed in paragraph Nos. 41 & 42 as follows:-

In fact, the Hon’ble Apex Court in the case of Bhupatbhai Bachubhai Chavda & Anr. v. State of Gujarat, reported in 2024 SCC Online SC 523 has very aptly held that an Appellate Court can interfere with the order of acquittal only if it is satisfied after re-appreciating the evidence that the only possible conclusion is that the guilt of the accused has been established beyond all reasonable doubt, which is not the case here.

Now coming back to the present case, we find upon having examined the evidence brought on record that as far as Section 379 of the IPC regarding the allegation of snatching a sum of Rs.5000/-, a watch and a silver chain is concerned, the evidence on record does not substantiate the said allegation nor such articles have been recovered from the accused apart from the fact that if the Investigating Officer would have been examined, some facts could have transpired concerning the same. Though recovery is not an indispensable requirement for inflicting conviction under Section 379 of the IPC, nevertheless when the principal witness’s version regarding the assault itself contains significant variation & other witnesses do not corroborate the specific act of assault, the absence of recovery becomes an additional circumstance against reversal of acquittal.

As far as Section 307 of the IPC is concerned, it would be first appropriate to quote Section 307 of the IPC herein below:-

From a bare perusal of Section 307 of the IPC, it is apparent that whoever does any act, with the intention or knowledge, which may cause death and in furtherance to the said intention and knowledge, he was doing such an act, he would be guilty under Section 307 of the IPC, but it would be required to be seen from the evidence produced by the prosecution, whether enough material has been brought on record to establish the charge U/s. 307 of the IPC beyond all reasonable doubts. In fact, to justify a conviction under Section 307 of the IPC, it is not essential that fatal injury capable of causing death should have been inflicted and it would be sufficient to justify a conviction under Section 307 IPC, if there is present an intent coupled with some overt act in execution thereof. Thus, what is material for Section 307 is the intention or knowledge of the accused and not the actual consequence of the act performed in furtherance of such intention. The provision clearly contemplates an act committed with the intention of causing death, which ultimately fails to achieve the intended result due to intervening circumstances. The requisite intention or knowledge must be of such a degree as is necessary to constitute the offence of murder. In the absence of such intention or knowledge, which forms an essential ingredient of Section 307 IPC, no offence of “attempt to murder” can be said to exist. Since intention is a state of mind, it cannot be proved by direct evidence with precision. As a fact, it can only be inferred from the surrounding circumstances and other relevant factors, such as the nature of the weapon used, any exchange of words between the accused and the victim at the time of the incident, the motive of the accused, the place of the injuries inflicted, the nature of the injuries and the overall circumstances under which the occurrence took place. These factors serve as crucial indicators in detecting or inferring intention through indirect or circumstantial evidence, which ultimately aids in establishing the mental element of the accused. In this regard, we would refer to a judgment rendered by the Hon’ble Apex Court in the case of Jage Ram vs State of Haryana, reported in (2015) 11 SCC 366.

Now coming back to the present case, we find that PW-6 has alleged that the accused persons were holding three-nut, however there is no allegation much less any evidence on record that the respondent nos.2 to 11 had fired gunshot on the appellant. Moreover, no injury has been inflicted either on the head or on the face or on the nose of PW-6 and the injuries found by the doctor, i.e. PW-12 do not correspond to any injury having been inflicted on the head of the informant by iron rod. We also do not find any chest injury to have been inflicted upon PW-6. A bare perusal of testimony of PW-12, i.e. the doctor would show that three injuries out total four could have been caused by falling on the surface, while the fourth injury has been found on the thigh, however even PW-6 has not alleged that any assault was made by the accused persons on his thigh, thus we find that there is no evidence whatsoever on record either ocular or medical so as to convict the respondent nos.2 to 11 under Section 307 of the IPC. In fact, perusal of the deposition of the father of the informant, i.e. PW-5 would show that he has also stated that he had heard that quarrel had taken place in between his son and others and while PW-6 was fleeing away, he had fallen down and sustained injuries. Therefore, there is absence of intent as also overt act in execution thereof to justify a conviction under Section 307 of the IPC, hence by no stretch of imagination, offence under Section 307 of the IPC is made out.

Now, as far as Sections 147, 148 and 149 of IPC are concerned, Section 149 IPC does not require proof of a separate overt-act by every member of unlawful assembly, nevertheless the appellant must reliably establish membership of the unlawful assembly and the common object or knowledge contemplated by the statutory provision. In the present case, the appellant’s case is unusually broad, inasmuch as he has stated that ten accused persons allegedly participated in the said occurrence, while several independent witnesses being co-villager of the appellant have either turned hostile or denied witnessing the occurrence or denied their police statements or admitted absence from the scene, thus the uncertainty regarding the individual assault, weapons and presence of several respondents consequently affects the foundation upon which constructive liability under Section 149 could be imposed.

Therefore, taking into account an overall perspective of the entire case, emerging out of the totality of the facts and circumstances, as indicated hereinabove and considering the evidence, which has been brought on record to prove the allegations as well as considering the credibility and trustworthiness of the evidence of the prosecution as also for the foregoing reasons, we find that as far as PW-1, PW-2, PW-3, PW-4, PW-5, PW-7, PW-8, PW-9, PW-10, PW-11 and PW-14 are concerned, they have either turned hostile or have not supported the case of the appellant, while the Investigating Officer has not been examined, hence the veracity of the testimony of the remaining witnesses, i.e. PW-6 and PW-13 has not stood corroborated. In fact, PW-13 has not been able to attribute specific overt acts qua the respondent nos.2 to 11, apart from his evidence being full of contradictions and discrepancies. As regards the evidence of PW-6 (informant/ appellant) is concerned, most of the principal injuries alleged to have been inflicted upon him do not find place in the medical report of PW-12, i.e. the doctor, his testimony is full of contradictions and his ocular evidence is not supported by the medical evidence. We also find that significant investigative deficiencies are existing, especially on account of non-examination of the Investigating Officer. Thus, we find that conviction cannot be handed/inflicted upon the respondent nos.2 to 11 merely on probability as the guilt of the accused persons should be proved beyond all reasonable doubts. Reference in this connection, be had to the following judgments rendered by the Hon’ble Apex Court in various cases from time to time:-

Therefore, we find that neither the finding of the learned Trial Judge is perverse nor impossible nor there is any omission to consider material evidence on record nor the findings are manifestly erroneous much less demonstrably unsustainable nor there are substantial and compelling reasons much less good and sufficient grounds for interfering with the impugned judgment of acquittal.

Having regard to the facts and circumstances of the case and for the foregoing reasons, we do not find any illegality or perversity in the findings recorded by the learned Trial Court in the impugned judgment dated 12.02.2021, passed by the learned Court of Sessions Judge, Araria in Sessions Trial No.606 of 2013, hence the present appeal is dismissed.