Patna High Court
Vidyanand Yadav vs The State Of Bihar on 4 April, 2025
Author: Mohit Kumar Shah
Bench: Mohit Kumar Shah
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.173 of 2016
Arising Out of PS. Case No.-85 Year-1992 Thana- TRIVENIGANJ District- Supaul
======================================================
1. Bhupendra Yadav Son of late Domi Yadav
2. Bhagwat Yadav Son of late Domi Yadav
3. Rajendra Yadav son of Bhagwat Yadav
4. Luxmi Yadav son of late Domi Yadav
5. Binod Yadav son of Luxmi Yadav
6. Yogendra yadav son of late Notai yadav
7. Mahendra Yadav son of Late Natai Yadav
All Residents of Village Macha Police Station -Triveniganj District Supaul.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 315 of 2016
Arising Out of PS. Case No.-85 Year-1992 Thana- TRIVENIGANJ District- Supaul
======================================================
Vidyanand Yadav Son of Late Natai Yadav Resident of village - Machha,
Police Station - Triveniganj, District - Supaul
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 173 of 2016)
For the Appellant/s : Mr.Alok Kumar, Senior Advocate
Mr.Birendra Kumar Singh, Advocate
Mr.Raghwendra Pratap Singh, Advocate
Mr.Neeraj Kumar, Advocate
For the Respondent/s : Mr.Dilip Kumar Sinha, APP
(In CRIMINAL APPEAL (DB) No. 315 of 2016)
For the Appellant/s : Mr.Alok Kumar, Senior Advocate
Mr.Birendra Kumar Singh, Advocate
Mr.Raghwendra Pratap Singh, Advocate
Mr.Neeraj Kumar, Advocate
For the Respondent/s : Mr.Dilip Kumar Sinha, APP
======================================================
Patna High Court CR. APP (DB) No.173 of 2016 dt.04-04-2025
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CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
and
HONOURABLE MR. JUSTICE NANI TAGIA
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH)
Date : 04-04-2025
1. The aforesaid appeals preferred under Section 374(2)
read with Section 389 (1) of the Code of Criminal Procedure,
1973 (hereinafter referred to as "CrPC") arise out of the same
judgment of conviction and the order of sentence dated
29.01.2016
and 09.02.2016 respectively, passed in Sessions
Trial No.138 of 1994 (arising out of Triveniganj P.S. Case
No.85 of 1992), by the learned Court of Additional Sessions
Judge-II, Supaul (hereinafter referred to as the “Ld. Trial
Judge”), hence these appeals have been heard together and are
being disposed off by the present common judgment and order.
By the said judgment dated 29.01.2016, the Ld. Trial Judge has
convicted the aforesaid appellants of both the cases for
commission of offence under Sections 147, 148, 323, 324, 307
and 302/120B of the Indian Penal Code (hereinafter referred to
as the “I.P.C.”) and as far as the appellant of the second case
namely, Vidyanand Yadav is concerned, he has also been
convicted for commission of offence under Section 27 of the
Arms Act, 1959. By the order of sentence dated 09.02.2016,
the appellants have been sentenced to undergo Rigorous
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Imprisonment (hereinafter referred to as “R.I.”) for two years
under Section 147 of the I.P.C., R.I. for three years under
Section 148 of the I.P.C., R.I. for six months under Section
120B of the I.P.C., R.I. for 1 year under Section 323 of the
I.P.C., R.I. for 3 years under Section 324 of the I.P.C., R.I. for
10 years with fine of Rs.10,000/- each under Section 307 of the
I.P.C. and imprisonment for life under Section 302 of the I.P.C.
with fine of Rs.10,000/- each and in default thereof, the
appellants have been directed to remain in custody for six
months. As far as the appellant of the second case namely,
Vidyanand Yadav is concerned, he has also been sentenced to
undergo R.I. for 3 years under Section 27 of the Arms Act,
1959. The sentences have been ordered to run concurrently.
2. The short facts of the case are that on 05.09.1992, the
fardbeyan of Ravi Yadav (the informant herein) was recorded
by the Sub-Inspector of Triveniganj Police Station at 10:45
a.m. In the fardbeyan, the informant has stated that about 3-4
years back, he had bought 1 bigha, 18 kathas, 10 dhurs of land
from Hanuman Agrawal but the said land was being cultivated
on contract basis by Natai Yadav from before, hence even after
purchase of the said land Natai Yadav did not allow the
informant to plough the field. In connection with the said
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dispute, the Panches from the neighbouring villages had got
together and Panchayati was held in which it was decided that
the informant will pay a sum of Rs. 5000/- to Natai Yadav upon
which Natai Yadav became ready and then the informant had
deposited a sum of Rs.5,000/- with the Panches. The informant
has also stated that the Chief Panch was Mukhiya of Kuswaha
Panchayat, namely Shiv Nandan Yadav. The informant has
further stated that he had ploughed some portion of the field in
question, whereafter his son Dilip Kumar Yadav had gone to
the land in question to plough the remaining portion of the said
land. In the meantime, he came to know that the amount
deposited before the Panches has been taken by Natai Yadav.
The informant has next stated that today in the morning, when
his son had gone to plough the field then he came to know that
Natai Yadav, his sons and other people had also gone to the
field in question to ask him not to plough the field. Thereafter,
the informant and his wife, namely Murti Devi had gone to the
field at about 8 a.m. when they saw that many people have
assembled at the spot, whereafter he told his son, Dilip Kumar
Yadav that since the said people are armed with weapons he
should open the plough since they may kill him, whereafter son
of the informant had opened the plough and had started going
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towards his house by keeping the plough on his shoulders,
however, in the meantime Vidyanand Yadav (appellant of the
second case) had taken out pistol from his waist and had fired
gun shot on the chest of the son of the informant resulting in
son of the informant falling down on the ground, whereafter
Bhupendra Yadav (appellant no.1 of the first case) had
assaulted the informant in his stomach by bhala but instead it
hit the ribs of the informant resulting in injury being caused,
leading to blood oozing out from the injuries. In the meantime,
Yogendra Yadav (appellant no.6 of the first case) had assaulted
the informant by lathi on his head resulting in breaking of his
head. Bhagwat Yadav (appellant no.2 of the second case) and
Bhupendra Yadav (appellant no.1 of the first case), armed with
bhala and Luxmi Yadav (appellant no.4 of the first case), who
was holding lathi as also Rajan Yadav and Binod Yadav
(appellant no.5 of the first case), Yogi @ Yogendra Yadav
(appellant no.6 of the first case), Manoj Yadav and Saroj
Yadav, who were armed with lathi, also started assaulting. The
guard of Jitendra Kumar Arvind (Ex-Mukhiya) and Mahendra
Yadav (appellant no.7 of the first case) were armed with arrow.
The informant has further stated that Natai Yadav was
exhorting all the accused persons present there to kill the father
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and son. The informant has next stated that upon being hit by
bhala, he had also fallen down on the ground at some distance
from his son Dilip Kumar. Thereafter, Saroj Yadav, Jitendra
Kumar Arvind and Luxmi Yadav (appellant no.4 of the first
case) had also started assaulting the wife of informant, namely
Murti Devi by lathi. The accused persons had then said that
Dilip Kumar Yadav has died, whereafter all the accused
persons had fled away, whereupon the younger son of the
informant, namely Rajesh who was hiding at some distance
had arrived and he said that his brother has been killed.
Thereafter, co-villagers, namely Nunu Lal Yadav, Shambhu
Yadav, Bhutai Yadav & Ors. had arrived there and said that
Dilip Yadav has died. The informant was then lifted & kept on
a bullock cart and Sitaram, Nunu Lal and Bhutai had taken him
to the Hospital where his treatment is going on. The informant
has next stated that the accused persons had formed a mob,
arrived at the said place and murdered his son. The fardbayan
of the informant was read over to him, which he had
understood and upon finding the same to be correct, he had put
his thumb impression in presence of two witnesses.
3. On the basis of the said fardbayan of the informant, a
formal FIR bearing Triveniganj P.S. Case No.85 of 1992 was
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registered for commission of offence under Sections 147, 148,
149, 323, 324, 326, 307, 302, 120B, 447 and 114 of the I.P.C.
and Section 27 of the Arms Act. After investigation and finding
the case to be true qua the appellants of the aforesaid two
cases, the police had submitted charge-sheet on 03.12.1992
under Sections 147, 148, 149, 323, 324, 326, 307, 302, 120B,
447 and 114 of the I.P.C. and Section 27 of the Arms Act, 1959.
Thereafter, the Ld. Trial Court had taken cognizance by an
order dated 19.04.1993 for the offences under Sections 147,
148, 149, 323, 324, 326, 307, 302, 120B, 447 and 114 of the
I.P.C. as also Section 27 of the Arms Act. The Ld. Trial Court
had then framed charges against the appellants of the aforesaid
two cases on 12.08.1996 under Sections 307, 324, 120B, 302,
147, 148 and 323 of the I.P.C. As far as the appellant of the
second case, namely Vidyanand Yadav is concerned, charges
were also framed separately under Section 302 of the I.P.C. and
under Section 27 of the Arms Act.
4. During the course of trial, 12 witnesses were examined
on behalf of the prosecution and one witness has been
examined on behalf of the defence. PW 1 Rajesh Kumar Yadav
is the son of the informant who claims to be an eye witness.
PW 2 Nunu Lal Yadav is the nephew of the informant, while
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PW 3 Murti Devi is the wife of the informant and PW 4 Ravi
Yadav is the informant of the present case as also father of the
deceased Dilip Kumar Yadav. PW 5 Anirudh Paswan is an eye
witness. PW 6 Kulanand Yadav has been declared hostile. PW
7 Yogendra Yadav is a formal witness. PW 8 Bhagwat Prasad
Yadav has been declared hostile. PW 9 Kala Devi is the wife of
the deceased, who is stated to be a hearsay witness. PW 10
Kamesh Chandra Yadav is a formal witness and PW 11 Bhutai
Yadav had though deposed on behalf of the prosecution,
however he did not turn up for further cross examination. PW
12 Dr. Vijay Kumar Agrawal has conducted the post-mortem of
the dead body of the deceased. DW 1 Virendra Yadav has been
examined on behalf of the defence, however he also appears to
be a formal witness.
5. The learned senior counsel appearing for the appellants
of both the cases Shri Alok Kumar has submitted that as far as
prosecution witnesses i.e. PW3 Murti Devi, PW6 Kulanand
Yadav and PW8 Bhagwat Prasad Yadav are concerned, they
have been declared hostile and as far as PW7 Yogendra Yadav
and PW10 Kamesh Chandra Yadav are concerned, they are
formal witnesses who have identified the signature and
handwriting of the Inspector on the formal FIR and the
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signature made over the Inquest Report. As far as PW2 Nunu
Lal Yadav, PW9 Kala Devi and PW11 Bhutai Yadav are
concerned, it has been submitted that the said witnesses are
hearsay witness. In this connection, it has been submitted that
PW2 Nunu Lal Yadav has stated in paragraph no.1 of his
deposition that he had arrived at the place of occurrence after
hearing the sound of firing, hence obviously he has not seen
the person who had fired upon the deceased Dilip Yadav. As far
as PW 9 Kala Devi is concerned, she has stated in paragraph
No.3 of her deposition that after her brother-in-law had
returned back to home, he had told her about the incident,
hence obviously she had not witnessed the actual incident. As
regards PW11 Bhutai Yadav, it has been submitted that he has
stated in his deposition that he had gone to the place of
occurrence after hearing the sound of firing of 3 knot pistol,
hence he can also not be an eyewitness and moreover, he did
not turn up for further cross examination, hence his deposition
loses evidentiary value. It is next submitted that PW12 is the
Doctor, who had conducted post mortem examination of the
dead body of the deceased Dilip Yadav.
6. The learned senior counsel for the appellants has next
referred to the evidence of PW1 Rajesh Kumar Yadav, PW4
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Ravi Yadav and PW5 Anirudh Paswan, who are stated to be
eyewitness. It is submitted that as far as PW1 is concerned, he
has stated in paragraph No.10 of his cross examination that at
the time when the accused persons were assaulting his father,
accused Vidyanand was holding gun in his hand and he had
fired in the air to scare the people standing there and on
hearing it he had become unconscious. Thus, it is submitted
that apparently since PW1 had become unconscious he could
not have witnessed the incident regarding murder of his
brother. As regards PW4, attention has been drawn to
paragraph No.13 of the deposition of PW1 to submit that PW1
has stated therein that his father PW4, i.e. Ravi Yadav had
become unconscious and was admitted in the Hospital for 4-5
days and then he had regained consciousness, whereafter the
statements of his father and mother were recorded by the
police. It has also been submitted by referring to paragraph
No.6 of the deposition of PW4 that he had fallen immediately
upon being assaulted and had become unconscious and had
regained consciousness in the Hospital. Attention has also been
drawn to paragraph No.8 of the deposition of PW4 wherein he
has stated that his statement was recorded at Police Station
after two days. Thus, it is submitted that though PW4 had
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remained in the Hospital for 3-4 days, however on the contrary
he has stated that he had gone to the Police Station where his
statement was recorded after 2 days, thus this witness is not
trustworthy.
7. The learned senior counsel for the appellants has
contended that as far as PW5 is concerned, he has stated in
paragraph no.10 of his deposition that he was irrigating his
field on the date of occurrence and at about 12 in the afternoon
he heard sound of gunshot firing and then he had gone towards
the place of occurrence, however on the contrary, it is apparent
from the fardbeyan of the informant and the deposition of other
witnesses that gunshot firing had taken place in between 8:00-
9:00 a.m. in the morning, hence the said witness is not an eye
witness and moreover, he is not trustworthy, inasmuch as there
are lot of inconsistencies in his testimony.
8. The learned Senior counsel appearing for the appellants
has next submitted that the evidence of PW1, PW4 and PW5
are full of inconsistency, hence the same cannot be relied for
the purposes of upholding the conviction of the appellants. It is
contended that the Investigating Officer has not been examined
which has caused great prejudice to the appellants. In this
regard, reference has been made to a judgment dated
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21.10.2011, passed by the Ld. Division Bench of this Court in
Criminal Appeal (DB) No. 592 of 2005 (Tulsi Dhadhi @
Dhari & Ors. Vs. The State of Bihar & Ors. & other
analogous cases), wherein it has been held that non-
examination of Investigating Officer is a serious infirmity in
the prosecution case which results in prejudice to the accused.
In this connection, it would be relevant to reproduce paragraph
No.44, thereof hereinbelow:-
“44. Admittedly, the Investigating officer has not
been examined. It is settled law that non-
examination of the Investigating Officer ipso facto
does not discredit the prosecution version. It is
needless to point out the right of bringing on record,
the contradictions in the statement of witnesses
made before the Investigating Officer, is a very
valuable right of the accused and by showing that,
the witness has made improvements or has given
evidence, which contradicts his earlier statement,
the accused is able to satisfy the court that the
witness is not a reliable witness. The non-
examination of Investigating Officer is serious
infirmity in the prosecution case which results in
prejudice to the accused. It is clear that the
examination of the Investigating Officer is necessary
in order to bring on record the contradictions in the
evidence of the witnesses, hence it is a valuable
right of the accused. Further it is clear that non-
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infirmity in the prosecution case, in so far as it
deprives the accused of the opportunity to show to
the court, that the witnesses were not reliable
witnesses, by proving contradictions in the earlier
statement. In the present case, non-examination of
the Investigating Officer has definitely prejudiced
the accused since the place of occurrence has not
been proved nor the claim of the eye witnesses that
they had seen the occurrence through hole or gap of
the window of the room has been proved, due to
non-examination of the Investigating Officer. Thus,
in our opinion, non-examination of the Investigating
Officer in the present case is a serious infirmity
resulting in prejudice being caused to the accused.
Hence, on this score also conviction of the accused
persons also cannot be sustained.”
9. The learned senior counsel for the appellants has next
contended that in his fardbeyan, PW4 i.e. the informant,
namely Ravi Yadav has stated that the appellant Vidyanand
Yadav had taken out a pistol from his pocket and fired
gunshots on the deceased Dilip Yadav, however in his
deposition PW4 has stated that he cannot say as to whether the
pistol was one barrel or two barrel. Thus, admittedly the
evidence of the informant is full of inconsistency with respect
of the nature of weapon. It is stated that neither blood has been
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seized from the place of occurrence nor the clothes, which
were handed over by the injured person to the police have been
examined by the forensic department much less exhibited
before the Ld. Trial Court during the course of trial. It is also
submitted that even the bullet which was taken out from the
body of the deceased and handed over to the constable in a
sealed voil has neither been exhibited nor has been examined
by the forensic experts. Thus, the nature of weapon used has
not been established apart from the fact that weapon has also
not been recovered which has also caused grave prejudice to
the appellants. In this regard, the learned senior counsel for the
appellants has referred to a judgment rendered by the Hon’ble
Apex Court in the case of Munna Lal Vs. The State of Uttar
Pradesh, reported in (2023) 3 SCR 224, paragraph nos.38 and
39 whereof are reproduced hereinbelow:-
“38. First, statement of PW-3 under section 161, Cr.
P.C. was recorded nearly 24 days after the incident.
Since the Investigating Officer did not enter the
witness box, the appellants did not have the occasion
to cross-examine him and thereby elicit the reason for
such delay. Consequently, the delay in recording the
statement of PW-3 in course of investigation, is not
referred to and, therefore, remains unjustified. The
possibility of PW-3, being fixed up as an eye-witness
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totally ruled out.
39. Secondly, though PW-4 is said to have reached
the place of occurrence at 1.30 p.m. on 5th
September, 1985 and recovered a bullet in the blood
oozing out from the injury at the hip of the dead body,
no effort worthy of consideration appears to have
been made to seize the weapons by which the
murderous attack was launched. It is true that mere
failure/neglect to effect seizure of the weapon(s)
cannot be the sole reason for discarding the
prosecution case but the same assumes importance
on the face of the oral testimony of the so-called eye-
witnesses, i.e.. PW-2 and PW-3, not being found by
this Court to be wholly reliable. The missing links
could have been provided by the Investigating Officer
who, again, did not enter the witness box. Whether or
not non- examination of a witness has caused
prejudice to the defence is essentially a question of
fact and an inference is required to be drawn having
regard to the facts and circumstances obtaining in
each case. The reason why the Investigating Officer
could not depose as a witness, as told by PW-4, is
that he had been sent for training. It was not shown
that the Investigating Officer under no circumstances
could have left the course for recording of his
deposition in the trial court. It is worthy of being
noted that neither the trial court nor the High Court
considered the issue of non-examination of the
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particularly conspicuous gaps in the prosecution case
and the evidence of PW-2 and PW-3 not being wholly
reliable, this Court holds the present case as one
where examination of the Investigating Officer was
vital since he could have adduced the expected
evidence. His non examination creates a material
lacuna in the effort of the prosecution to nail the
appellants, thereby creating reasonable doubt in the
prosecution case.”
10. It is contended by the learned senior counsel for the
appellants that the place of occurrence remains to be
established inasmuch as neither the prosecution witnesses have
delved upon the said aspect of the matter except PW1,
nonetheless the same was required to be proved by the
Investigating Officer, however he has not been produced by the
prosecution. In this regard, the Ld. senior counsel for the
appellants has referred to a judgment rendered by the Hon’ble
Apex Court in the case of Ravishwar Manjhi and Others Vs.
State of Jharkhand, reported in (2008) 16 SCC 561, paragraph
no.27, whereof is reproduced hereinbelow:-
“27. The investigating officer in a case of this nature
should have been examined. His examination by the
prosecution was necessary to show that there had
been a fair investigation. Unfortunately, even no site
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show as to the exact place where the occurrence had
taken place. It is stated that the house of the parties is
divided by a road. If that be so, it was all the more
necessary to pinpoint the exact place of occurrence to
ascertain who was the aggressor.”
11. It is next contended by the learned senior counsel for the
appellants that neither any injury report has been produced
with regard to the injured persons nor the injuries of PW3 and
PW4 have been proved and moreover, there is nothing on
record to suggest that they had received treatment at the
Hospital, hence it is submitted that in absence of examination
of the injuries of PW3 and PW4 as also in absence of any
injury report having been brought on record during the course
of trial, no case is made out under Section 307 of the IPC. It is
also contended that the fardbayan has neither been exhibited
nor proved. Similarly, inquest report has also not been brought
on record, which has also caused great prejudice to the
appellants. It is stated that PW1, in paragraph No.2 of his
examination-in-chief has stated that Vidyanand Yadav had fired
on the deceased from a very close distance and similarly PW4
has also stated in his deposition that bullet was fired by the
pistol in question by bringing the same near the chest of the
deceased, however the evidence of PW12 Dr. Vijay Kumar
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Agrawal would show that there is no sign of charring or
burning, gun powder has not been found and only Lacerated
punctured wound 1 ½”x ¾” x Thorisic cavity deep over the
right side of the chest wall has been found and the doctor has
stated in his cross examination that it appears that the deceased
was shot at from a distance beyond 6 feet, thus the entire
prosecution story is falsified and appears to be cooked up.
Lastly, the learned senior counsel for the appellants has
submitted that Section 120B of the IPC shall not to be attracted
in the present case in view of the fact that for constituting
conspiracy, previous meeting of mind is necessary, which has
not been proved in the present case. In this regard, the learned
senior counsel for the appellants has referred to a judgment
rendered by the Hon’ble Apex Court in the case of Parveen @
Sonu Vs. The State of Haryana, reported in 2021 SCC
OnLine SC 1184, paragraph no.12, whereof is reproduced
hereinbelow:-
“12. It is fairly well settled, to prove the charge of
conspiracy, within the ambit of Section 120-B, it is
necessary to establish that there was an agreement
between the parties for doing an unlawful act. At the
same time, it is to be noted that it is difficult to
establish conspiracy by direct evidence at all, but at
the same time, in absence of any evidence to show
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meeting of minds between the conspirators for the
intended object of committing an illegal act, it is not
safe to hold a person guilty for offences under
Section 120-B of IPC. A few bits here and a few bits
there on which prosecution relies, cannot be held to
be adequate for connecting the accused with the
commission of crime of criminal conspiracy. Even the
alleged confessional statements of the co-accused, in
absence of other acceptable corroborative evidence,
is not safe to convict the accused. In the case of Indra
Dalal v. State Of Haryana, this Court has considered
the conviction based only on confessional statement
and recovery of vehicle used in the crime. In the said
case, while setting aside the conviction, this Court
has held in paragraphs 16 & 17 as under:
“16. The philosophy behind the aforesaid
provision is acceptance of a harsh reality that
confessions are extorted by the police officers by
practising oppression and torture or even
inducement and, therefore, they are unworthy of
any credence. The provision absolutely excludes
from evidence against the accused a confession
made by him to a police officer. This provision
applies even to those confessions which are made
to a police officer who may not otherwise be
acting as such. If he is a police officer and
confession was made in his presence, in whatever
capacity, the same becomes inadmissible in
evidence. This is the substantive rule of law
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has been reiterated countlessly by this Court as
well as the High Courts.
17. The word “confession” has nowhere been
defined. However, the courts have resorted to the
dictionary meaning and explained that
incriminating statements by the accused to the
police suggesting the inference of the commission
of the crime would amount to confession and,
therefore, inadmissible under this provision. It is
also defined to mean a direct acknowledgment of
guilt and not the admission of any incriminating
fact, however grave or conclusive. Section 26 of
the Evidence Act makes all those confessions
inadmissible when they are made by any person,
whilst he is in the custody of a police officer,
unless such a confession is made in the immediate
presence of a Magistrate. Therefore, when a
person is in police custody, the confession made
by him even to a third person, that is, other than a
police officer, shall also become inadmissible.”
12. Per contra, the learned APP for the State, Shri Dilip
Kumar Sinha has submitted that PW1, PW3, PW4 and PW5 are
material witness as also eyewitnesses and they have fully
supported the case of the prosecution. It is also submitted that
the ocular evidence stands fully corroborated by the medical
evidence. It is contended that all the material witnesses have
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supported the case of the prosecution, their testimonies are
consistent and no contradictions are present. It is submitted that
minor omissions or variations or infirmities in the evidence are
never considered to be fatal and the same cannot be ground for
rejection of evidence in entirety. In this regard, reference has
been made to a judgment, rendered by the Hon’ble Apex Court
in the case of State of Uttar Pradesh Vs. Krishna Master and
Ors., reported in AIR 2010 SC 3071. Reference has also been
made to a judgment, rendered by the Hon’ble Apex Court in
the case of State of Madhya Pradesh Vs. Dal Singh and Ors.,
reported in 2013 (14) SCC 159 and it has been submitted that
in every criminal case discrepancy, embellishment and
emphasis are bound to occur hence the Court should form its
opinion about the credibility of a witness and record a finding
with respect to whether his deposition inspires confidence. In
this regard, it would be relevant to reproduce paragraph No.13
thereof, which is reproduced hereinbelow:-
“13. So far as the discrepancies, embellishments
and improvements are concerned, in every
criminal case the same are bound to occur for
the reason that witnesses, owing to common
errors in observation i.e. errors of memory due
to lapse of time, or errors owing to mental
disposition, such as feelings of shock or horror
Patna High Court CR. APP (DB) No.173 of 2016 dt.04-04-2025
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that existed at the time of occurrence. The court
must form its opinion about the credibility of a
witness, and record a finding with respect to
whether his deposition inspires confidence.
“Exaggeration per se does not render the
evidence brittle. But it can be one of the factors
against which the credibility of the prosecution
story can be tested, when the entire evidence is
put in a crucible to test the same on the
touchstone of credibility.” Therefore, mere
marginal variations in the statements of a
witness cannot be dubbed as improvements, as
the same may be elaborations of a statement
made by the witness at an earlier stage.
“Irrelevant details which do not in any way
corrode the credibility of a witness cannot be
labelled as omissions or contradictions.” The
omissions which amount to contradictions in
material particulars i.e. which materially affect
the trial, or the core of the case of the
prosecution, render the testimony of the witness
as liable to be discredited. Where such
omission(s) amount to contradiction(s), raising
serious doubts about the truthfulness of a
witness, and other witnesses also make material
improvements before the court in order to make
their evidence acceptable, it cannot be said that
it is safe to rely upon such evidence. (Vide A.
Shankar v. State of Karnataka [(2011) 6 SCC
279])”
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13. The learned APP for the State has next contended that it
is a well settled law that the evidence of a prosecution witness
cannot be rejected in toto, merely because the prosecution
chose to treat him as hostile and had cross examined him,
however the same can be accepted to the extent their version is
found to be dependable on a careful scrutiny thereof. In this
regard, reference has also been made to a judgment rendered
by the Hon’ble Apex Court in the case of Selvamani Vs. State
Rep. by the Inspector of Police, reported in 2024 SCC online
SC 837. The learned APP for the State has further submitted
that since the place of occurrence is not disputed and moreover,
no suggestion was put in cross examination about the veracity
of the place of occurrence as disclosed by the prosecution
witnesses, non-examination of the Investigating Officer will
not cause any prejudice to the appellants. It is also submitted
that the manner of occurrence has been described by the
witnesses in their evidence and there is no discrepancy to the
said effect. Thus, it is submitted that the records would bear it
out that ample materials are available on record to connect the
appellants with the alleged crime, hence their conviction and
sentence should be upheld. It is next submitted that the Ld.
Trial Judge has passed the impugned judgment and the order of
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conviction and sentence by considering the materials on record
and the same is a reasoned order, thus both the appeals are fit
to be dismissed.
14. Besides hearing the learned counsel for the parties, we
have minutely perused both the evidence i.e. oral and
documentary. Before proceeding further, it is necessary to
cursorily discuss the evidence.
15. P.W.1 Rajesh Kumar Yadav is son of the informant and
brother of the deceased, who claims to be an eye witness and
he has stated in his deposition that the occurrence dates back to
4 1/4th years at about 8 a.m. in the morning when his brother
Dilip Yadav had gone to Machahadhar for ploughing field and
at that time Natai Yadav had arrived there with a mob and
when his father came to know that Natai Yadav had arrived at
the place of occurrence along with the mob, he and his father
also went there and saw that Natai Yadav, Vidyanand Yadav,
Yogendra Yadav, Mahendra Yadav, Laxmi Yadav, Bhagwat
Yadav, Bhupendra Yadav, Rajendra Yadav, Vinod Yadav, Rajan
Yadav, Manoj Yadav, Saroj Yadav and Jitendra Kumar Arvind
were present there. PW 1 had then hidden himself in the bushes
out of fear, had started watching the incident and in the
meantime his father had told his brother Dilip Yadav to run
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away. Thereafter, his brother Dilip started returning back to his
home along with Hal (plough) and in the meantime Natai
Yadav exhorted to kill him, whereupon Vidyanand Yadav had
taken out a pistol from his back and had gone near Dilip Yadav,
whereafter he had fired gun shot on his chest leading to Dilip
being injured and then he fell down. Bhupendra Yadav had
then assaulted father of PW 1 with bhala which hit him on his
right ribs. Yogendra Yadav had also assaulted father of PW 1
on his head which had hit his forehead. Thereafter, Bhupendra
Yadav and Laxmi Yadav had assaulted the mother of PW1 by
farsa which had hit the right hand finger of his mother leading
to injury being inflicted and then the accused persons had run
away. PW 1 has next stated that thereafter, he had come out of
bushes and gone near his brother and saw that he had died.
Thereafter, Shambhu Yadav and Nunu Lal Yadav had lifted his
father and put him on a vehicle and taken him away. PW 1 has
recognized the accused persons standing in the dock.
16. In cross examination, PW 1 has stated that prior to the
said incident, he had neither seen his father ploughing the field
where killing had taken place nor he had seen his deceased
brother Dilip Yadav ploughing the said field. PW 1 has next
stated that he was hiding in the bushes situated towards east-
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southern corner of the field in question and from there he was
watching the accused persons who were also watching him.
PW 1 has also stated that his mother was present on the
western-southern corner of the field adjacent to the field in
which the incident was taking place and the same belongs to
Raghuni Yadav. He has also stated that his father was standing
in the field of Raghuni Yadav along with his mother and they
were telling his brother to return back and at that time the
accused persons had caught hold of his father, whereafter they
had started assaulting his father and when his mother tried to
save his father, the accused persons started assaulting her as
well. It is next stated by PW 1 that at the time when the
accused persons were assaulting his father, appellant
Vidyanand Yadav had arrived in field of Raghuni Yadav and
was holding a gun in his hand, whereafter he had fired in order
to scare the people present there and after hearing the noise of
the gun he had become unconscious. He has also stated in his
cross examination that police had recorded his statement. PW 1
has also stated that bhala was thrown on the body of his father
which had got embedded and then the other accused persons
had assaulted his father on his head by lathi, whereafter he had
fallen down on the ground, blood was also dropping on the
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ground as also his father had become unconscious, whereupon
he was admitted in a Hospital where he remained for 4-5 days
and after he regained consciousness, his statement as also the
statement of his mother was recorded by the police. He has
also stated that his sister-in-law’s statement was not recorded.
17. PW 2 Nunulal Yadav is stated to be the nephew of the
informant and he has stated in his deposition that the
occurrence dates back to about 4 years, which had taken place
in the morning when he was ploughing his field and after he
heard the sound of gunshot firing he had gone to the place of
occurrence and from the Nahar (canal) he had seen Dilip
Yadav, Ravi Yadav and his elder mother having fallen down.
He had also seen that bullet was embedded in the chest of Dilip
and he had died as also blood was oozing out from his chest.
He had also seen injury inflicted by bhala on the ribs of Ravi
(PW 4), whereafter he had torn his towel and tied the wound of
Ravi. PW 2 has also stated that injury was present on the
forehead of Ravi and on the right hand of his elder mother and
then Ravi was taken on a bullock cart to the Hospital. PW 2
has recognized the accused persons standing in the dock. In
cross examination, PW 2 has stated that he had gone to the
place of occurrence after he heard the sound of gunshot firing
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and he had taken half an hour to reach there, however when he
reached there, no accused person was present and his elder
mother had become unconscious.
18. PW 3 Murti Devi is wife of the informant and mother of
the deceased, who has stated in her examination-in-chief that
the occurrence dates back to 4 ½ years at about 8 a.m. in the
morning when his son Dilip had gone to plough the field at
Machahadhar and from behind her husband had also gone.
Subsequently, she came to know that his son has been shot by
gunshot firing and then she had also gone there where she saw
that Dilip and her husband had been assaulted. PW 3 has
further stated that Bhagwat, Bhupendra and Yogendra had also
assaulted her husband on his back and chest, resulting in her
husband falling on the ground. She has next stated that she had
not seen her son being hit by gunshot, however she had seen
the accused persons who had assaulted her husband. PW 3 has
also stated that Bhupendra and Luxmi had also assaulted her
with lathi and the entire incident was witnessed by the
villagers, apart from her and her younger son having witnessed
the said occurrence and after they had fallen down on the
ground, the accused persons had run away after the villagers
had arrived there. Though the said witness has been declared
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hostile by the Public Prosecutor, but he was permitted to cross
examine this witness and in her cross examination she has
stated that she had disclosed before the police that at the time
when she and her husband had gone to the place of occurrence,
the accused persons were assaulting her son Dilip. She has also
stated that Vidyanand Yadav had taken out pistol from his waist
and had fired gun shot on the chest of her son, whereafter he
had fallen down. She has next stated that she does not
remember as to whether she had disclosed the aforesaid facts
before the police and whether she had told the police that Natai
Yadav was asking the accused persons to kill the father and
son. PW 3 has recognized the accused persons standing in the
dock. In her cross examination by the accused persons, PW 3
has stated that nobody had gone with his son and at the time of
sunrise he had eaten food and left for his field and then her
husband had gone after 5-10 minutes of departure of Dilip,
whereafter Rajesh had also gone from behind. Thereafter, PW
3 came to know from someone that her son had been shot at
and after she heard hulla (alarm), she had gone to the place of
occurrence. She has also said that she had heard that her
husband and son have been killed. She has also stated that
upon hearing alarm, her son Rajesh and 20-25 people had
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rushed to the place of occurrence and when she reached the
field, where occurrence had taken place, she saw that her son
Dilip and husband had fallen down.
19. PW4 Ravi Yadav is the father of the deceased and
informant of the present case, who has stated in his deposition
that about 4 ½ years back at about 8-9 am in the morning he
and his son Dilip had gone to Machahadhar for ploughing the
field, which had been purchased by them from Gopal Marwadi
for a sum of Rs.48,000/-, however the same was being earlier
ploughed by Natai Yadav on contract basis. Natai Yadav was
preventing the informant and his family members from
ploughing the field, hence panchayati was held and it was
decided that they should give a sum of Rs.5,000/- to Natai
Yadav, whereafter he will let them plough the field and then
they had deposited a sum of Rs.5,000/- with the Panches but
still he did not allow them to plough the field. On the fateful
day the son of the informant had gone towards the field in
question and then he and his wife and son Rajesh had also gone
towards the said field, where they saw the accused persons,
namely, Natai Yadav, Vidyanand Yadav, Yogi Yadav, Bhagwat
Yadav, Laxmi Yadav, Bhupendra Yadav, Rajan Yadav, Binda
Yadav, Guard of Mukhiya and son of Mukhiya, namely Saroj,
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who were armed with various weapons. Thereafter, the
informant had told his son to dismantle his plough and take it
away otherwise the said accused persons would kill him. Then
Dilip Yadav had opened the plough and started going back,
however at that moment Natai Yadav exhorted the other
accused persons to kill the informant and his son, whereupon
Vidyanand had fired gunshots on the chest of the son of the
informant resulting in his son, namely Dilip Yadav falling
down dead on the ground. Thereafter, Bhagwat Yadav armed
with farsa and Bhupan armed with bhala had assaulted the
informant, however he shifted towards the side, resulting in the
bhala hitting him on his side, whereafter he had fallen down
and then Bhupan and Laxmi had assaulted his wife. The
accused persons had then said that both father and son have
died, hence they decided to leave the place and then they had
left the place of incident. PW4 has further stated that his son
Rajesh Yadav, upon seeing weapons being brandished by the
accused persons, had hid in the bushes nearby and after the
accused persons had left, he had come running to the place of
occurrence and had said that his brother has died, whereafter
co-villagers and others had arrived there.
20. In cross examination, PW4 has stated that after being
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assaulted he had become unconscious and he regained
consciousness in the Hospital, however he cannot say as to
after how much time he regained consciousness in the
Hospital. He has also stated that he did not return back from
the Hospital on the same day and had stayed at the Hospital for
3-4 days. PW4 had next stated in his cross examination that his
statement was recorded by the police thrice. First statement
was recorded by the police at the Hospital. Second statement
was recorded at the Police Station and third statement was
recorded in presence of the Superintendent of Police and the
Deputy Superintendent of Police. He has also stated that his
statement was recorded at the Police Station after two days of
the occurrence. He has next stated that he had disclosed in his
statement made before the police that Bhagwat Yadav had hit
him on his forehead by farsa and this fact was stated by him in
all the three statements. PW4 has also stated that he had not
stated in his restatement that Yogi @ Yogendra Yadav had hit
him on his head by lathi, resulting in his head being damaged.
He has also stated that Bhagwat Yadav was holding bhala in
his hand and he was also holding farsa. While, Bhagwat was
holding farsa in his right hand, he was holding bhala in the
other hand. PW4 has stated that he does not remember whether
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he had stated in his fardbayan that Bhupendra Yadav had
assaulted his wife. PW4 has further stated in his cross
examination that on the day of occurrence his children had told
him that Natai Yadav had gone to the place of occurrence with
a mob. PW 4 has stated that after some time he had gone to the
place of occurrence with Rajesh and his wife and upon
reaching the place of occurrence he stood at the field and had
seen his son from a distance of 2-3 bamboo length and while
Rajesh, upon seeing the mob had hid himself in the bushes, the
mob had surrounded Dilip Kumar. PW4 has also stated that
during the course of the accused persons assaulting his son, he
had witnessed firing of gunshots, however he did not go to
save his son.
21. PW4 has next stated that Dilip Yadav had fallen at the
place where he was shot, however he does not remember as to
whether Anirudh and Kulanand had arrived there to save them.
PW4 has also stated that the accused persons were hiding the
weapons in their pyjamas and had fired gunshots on his son
from a close distance i.e. from a distance of 2-3 hand length.
PW4 has stated that he was assaulted by lathi on his head and
body. He has also stated that he was wearing dhoti and banyan
while his son Dilip was wearing lungi and banyan and after
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being assaulted, blood stains were present on the banyan and
dhoti. PW4 has also stated that people from the neighbouring
place were also standing at the place of occurrence. PW4 has
next stated that Dilip Yadav had gone to plough the field at 6-7
am in the morning. PW4 has also stated that he had given the
blood stained clothes to the police including dhoti and banyan.
He has also stated that there was no hole of bhala in the
banyan. PW4 in his cross examination has stated that except
Vidyanand, no other accused had assaulted Dilip and rest of the
accused persons were quietly standing at a distance of 2-3
bamboo length. PW4 has stated that he had gone to the place
where Vidyanand was standing, however he had not held his
son by hand since he was standing at a distance of 5-6 hand
length and had not gone near his son. He has next stated that no
accused person had caught hold of him but he had not gone to
save his son Dilip, who had died. PW4 has also stated that he
was hit by bhala, while he was standing and blood stains had
spread over his banyan, which he had handed over to the police
after 3-4 days, in the Hospital. He has also stated that he does
not remember whether seizure list of banyan was prepared or
not and whether he had signed the same or not. He has stated
that during the course of occurrence, he had seen firing being
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made from the fire arm but he does not remember whether the
same was single barrel or double barrel gun. He has also stated
that firing was made on the chest of his son. He has next stated
that only one accused person was holding a gun. In his cross
examination PW4 has stated that he cannot say as to how many
pellets had pierced the body of his son Dilip Yadav. PW4 has
also stated that the land which he had purchased from marwadi
belongs to Natai Yadav. PW4 has next stated that he alongwith
his son and wife had gone to the place of occurrence, however
he does not remember whether he had disclosed the said fact
before the police. PW4 has stated that he was also assaulted
and upon being assaulted he had fallen down, whereafter he
had become unconscious, however he does not remember as to
when he regained consciousness, nonetheless, he has stated
that he had regained consciousness in the Hospital. He has also
stated that his son and his wife were also beaten and his wife
had also become unconscious, however Rajesh Yadav was not
assaulted.
22. PW5 Anirudh Paswan has stated in his deposition that
the occurrence dates back to 14 years at about 7-8 am in the
morning when he was working in his field and weeding out
grass from the field which he had taken on contract basis and at
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that time Dilip Yadav had arrived for ploughing his field which
he had bought from Hanuman Agrawal, whereafter from
behind accused persons, namely, Natai Yadav, Bhagwat Yadav,
Bhupendra Yadav, Mahendra Yadav, Yogi Yadav, Vidyanand
Yadav, Rajeshwar Yadav, Saroj Yadav, Manoj Yadav, Jitendra
Yadav and one unknown person had arrived there, who were
armed with farsa, lathi and country made pistol. Then,
Vidyanand Yadav had fired gunshot from his 3 knot pistol on
Dilip Yadav leading to bullet piercing his chest, whereafter
Dilip Yadav had fallen down and died. PW5 has also stated that
thereafter, alarm was raised and then father of Dilip Yadav and
his mother had arrived there, whereafter the accused
Bhupendra Yadav had assaulted Ravi Yadav (PW 4) by bhala
which had struck his ribs. Thereafter, Saroj Yadav had
assaulted Murti Yadav, wife of Ravi Yadav by lathi and when
Ravi Yadav had fallen down, accused Bhagwat Yadav had
assaulted him with lathi and then Manoj Yadav had also
assaulted Murti Devi by lathi. PW5 has also stated that Dilip
Yadav had died on the spot and after seeing the same the
accused persons ran away. He has also stated that the younger
son of Ravi Yadav, namely Rajesh Yadav had arrived there and
said that his brother has died. Thereafter, the nephew of Ravi
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Yadav, namely Shambhu Yadav, Nunu Yadav and others had
arrived there and taken the injured to the Hospital. In his cross
examination, PW5 has stated that he was cultivating his field
since morning, the period was Sawan-Bhado and he continued
to irrigate his crops till 12:00 in the day time, whereafter he
heard sound of gunshot firing at 12:00 in the day time,
whereupon he went towards the place of occurrence. In
paragraph No.12 of his cross examination, PW5 has stated that
he had seen firing of gunshots which had pierced the chest of
the deceased, namely Dilip Yadav.
23. PW 6 Kulanand Yadav has stated in his deposition that
he does not know anything with regard to death of Dilip Yadav,
hence he was declared hostile by the prosecution, nonetheless
he was cross examined by the prosecution, during the course
whereof, he has stated that it is not a fact that he had disclosed
before the police that on 05.09.1992, upon hearing sound of
gunshot firing, he had reached near the canal on the eastern
side of the village and seen the accused persons standing there
as also had heard them saying that both father and son have
died.
24. PW 7 Yogendra Yadav is a formal witness, who has
proved the formal FIR and has identified the signature of the
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then Sub-Inspector of Police, Triveniganj Police Station and
the same has been marked as Exhibit No.1.
25. PW 8 Bhagwat Prasad Yadav has stated in his
deposition that he does not know anything about the incident,
hence he was declared hostile. In his cross examination
conducted by the Ld. Additional Public Prosecutor, he has
stated that he had not given any statement before the police,
although he was confronted with his statement made under
Section 161 Cr.P.C.
26. PW 9 Kala Devi is wife of deceased Dilip Yadav and
she has stated in her deposition that the occurrence dates back
to 18 years at about 8-9 a.m. in the morning. She has stated that
her father-in-law had purchased land from Marwari which was
being ploughed by Natai Yadav on contract basis. Thereafter,
Panchayati was held and it was decided that her father-in-law
would give a sum of Rs.5,000/- to Natai for the purposes of
ploughing the field, whereafter her father-in-law Ravi Yadav
had deposited a sum of Rs.5,000/- with the Panches. She has
further stated that on Saturday her husband had gone to plough
the field when the accused persons including the appellants had
surrounded him and then Rajesh said that his brother has been
shot dead by them, while she was also coming from behind.
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She has also stated that the accused persons had assaulted her
father-in-law and mother-in-law by lathi and Bhupendra Yadav
had hit on the ribs of her father-in-law Ravi Yadav by bhala
and then he was assaulted by lathi on his head. In cross
examination, PW 9 has stated that her statement was recorded
by the police on the date of occurrence. She has also stated that
she had told the police that her brother-in-law Rajesh Yadav
had returned from the place of occurrence and had told her
about the incident. She has next stated that she also went to the
Hospital when her mother-in-law Murti Devi and father-in-law
Ravi Yadav were being taken there in an injured condition for
treatment.
27. PW 10 Kamesh Chandra Yadav is a formal witness and
has stated in his deposition that the murder of Dilip Yadav had
taken place 18 years back and he had put his signature on the
inquest report of the deceased, apart from Shambhu Kumar
Yadav having also put his signature over the same, however he
has stated that he does not know about the occurrence.
28. PW 11 Butai Yadav is the brother of the informant, who
has though been examined in chief but he was cross examined
partially and then he did not turn up for further cross
examination, nonetheless he has stated in his deposition that
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Dilip Yadav was murdered and the occurrence had taken place
18 years back at about 8-9 a.m. in the morning when he was at
his house. He has stated that he had gone to the place of
occurrence after alarm was raised, where he saw that Ravi
Yadav was being assaulted by bhala. He has also stated that
Dilip Yadav had died and Murti Devi was also injured. PW 11
has also named the accused persons, who had arrived at the
place of occurrence, variously armed including the appellants
herein. He has stated that Bhagwat Yadav was saying that
father and son have been killed. The injured were then taken to
the Hospital. PW 11 has next stated that Dilip Yadav had
received gunshot injury in his ribs. Ravi Yadav had received
bhala injury in his ribs and blood was oozing out from his
head. In cross examination, PW 11 has described the location
of one canal of the village and has stated that he does not
remember as to when he heard the sound of firing of 3 knot,
prior to the occurrence.
29. PW 12 Doctor Vijay Kumar Agrawal is the Doctor, who
has conducted the post mortem examination of the dead body
of the deceased Dilip Kumar Yadav. He has stated in his
deposition that on 06.09.1992, he was posted as Medical
Officer, Sub-Divisional Hospital, Supaul and he had performed
Patna High Court CR. APP (DB) No.173 of 2016 dt.04-04-2025
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post-mortem on the dead body of the deceased Dilip Yadav and
had found anti-mortem injuries on his person. The injuries
found on the dead body of deceased Dilip Kumar Yadav were
(1) Lacerated punctured wound 1 ½”x ¾” x Thoracic cavity
deep over the right side of the chest wall, 3″ medial to the right
nipple inverted in shape indicating wound of entry. PW 12, on
dissection, had come to the following findings, apart from
noting his conclusion which are being reproduced
hereinbelow:-
(i) Skull bones meninges in the brain matter was pale
and intact.
(ii) All chambers of heart were empty.
(iii) Lungs right lung lacerated from the middle, the
bullet was recovered.
(iv) Stomach contain fully digested food particles.
(v) Liver was pale but intact.
(vi) Kidneys were intact.
(vii) Spleen was congested.
(viii) Urinary bladder was empty.
Cause of death:- Haemorrhage and shocks leading to
cardio respiratory failure caused by fire arm.
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Time elapsed since death to P.M. held – within 48 hours.
Note: A sealed voil which bears the name of deceased
and bears my signature containing the bullet, handed
over to the constable as per Ext.
PW12 has identified the post mortem report, which has
been prepared in his writing as also bears his signature and the
same has been marked as Exhibit No.2. In his cross
examination PW12 has stated that sealed voil bearing the name
of the deceased and his signature, containing the bullet in
question was handed over to a constable. He has also stated
that he has not mentioned in his report as to by what type of
arms, injury has been caused. He has also stated that the dead
body was in the process of decomposition, rigor mortis had
disappeared and it was the month of September. He has also
stated that rigor mortis is the solitary means for determination
of hours of death and rigor mortis differs from season to season
and from weather to weather. PW12 has also stated that
velocity and distance of various types of arms are different. He
has next stated that the deceased was shot at from a distance of
beyond 6 feet.
30. After closing the prosecution evidence, the Ld. Trial
Court recorded the statement of the appellants on 06.10.2012,
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under Section 313 of the Cr.P.C. for enabling them to
personally explain the circumstances appearing in the evidence
against them, however, in their respective statements they
claimed to be innocent and stated that they would produce
witness.
31. The defence has though produced one defence witness,
however, the learned senior counsel for the appellants has not
placed reliance on the same.
32. The Ld. Trial Court, upon appreciation, analysis and
scrutiny of the evidence adduced at the trial has found the
aforesaid appellants guilty of the offences and has sentenced
them to imprisonment and fine, as noted above, by its
impugned judgment and order.
33. We have perused the impugned Judgment of the Ld.
Trial Judge, the entire materials on record and have given
thoughtful consideration to the rival submissions made by the
Ld. Counsel for the Appellants as well as the Ld. APP for the
State.
34. A bare perusal of the evidence of the prosecution reveals
that on 05.09.1992 at around 8 a.m. in the morning, son of the
informant, namely Dilip Kumar Yadav (deceased) had gone to
plough his filed, whereafter the informant, his wife and his
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younger son Rajesh Kumar Yadav had also gone behind him
towards the said field, where accused Natai Yadav (now dead)
had exhorted Vidyanand Yadav (appellant of the second case)
to kill the informant and his son, whereupon Vidyanand Yadav
had fired gun shots on the chest of the son of the informant
resulting in his son, namely Dilip Yadav falling down dead on
the ground. It is stated that the appellants of the first case were
also present there and then Bhagwat Yadav, armed with farsa
and Bhupendra Yadav (appellant no.1 of the first case) armed
with bhala had assaulted the informant by bhala, whereupon
he had fallen down, whereafter Bhupendra Yadav and Luxmi
Yadav (appellant no.4 of the first case) had assaulted the wife
of the informant. We find that admittedly, PW 7 (Yogendra
Yadav) and PW 10 (Kameshwar Chandra Yadav) are formal
witnesses, who have proved the formal FIR and the Inquest
Report, apart from PW 12 being the Doctor who has conducted
the post-mortem examination of the dead body of the deceased.
As far as PW 2 (Nunu Lal), PW 9 (Kala Devi) and PW 11
(Bhutai Yadav) are concerned, their evidence shows that they
are hearsay witnesses. Thus, the present case rests on the
evidence of PW 1 Rajesh Kumar Yadav, PW 4 Ravi Yadav and
PW 5 Anirudh Paswan. As far as PW 5 Anirudh Paswan is
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concerned, he has stated in his cross examination that while he
was irrigating his crops till 12:00 in the afternoon, he heard
sound of gunshot firing at 12 in the day time and then he went
towards the place of occurrence, whereas the fact, as is
apparent from the fardbeyan and the evidence on record, is that
the incident had taken place around 8 a.m. in the morning,
hence it is not possible that PW 5 had witnessed the alleged
occurrence more particularly firing of gunshot by Vidyanand
Yadav (appellant of the second case) on the chest of Dilip
Yadav (deceased), thus his testimony is not trustworthy.
35. As far as PW 1 Rajesh Kumar Yadav is concerned, we
find from his evidence that he is an eye witness to the alleged
occurrence and he had hid himself in the bushes near the place
of occurrence out of fear from where he had watched the entire
incident as also had seen Vidyanand Yadav (appellant of the
second case) taking out a pistol from his back and then firing
gunshot on the chest of Dilip Yadav (deceased), leading to him
being injured and falling down on the ground. Though the
learned senior counsel for the appellants has tried to draw
contradiction in the evidence of PW 1 to the effect the PW 1
has stated in his cross examination that Vidyanand Yadav
(appellant of the second case) had arrived in the field of
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Raghuni Yadav holding a gun in his hand, whereafter he had
fired in order to scare the people present there and on hearing
the noise of gunshot firing he had become unconscious,
however we find from the evidence of PW 1 that he has stated
that at the time when the accused persons were assaulting his
father, meaning thereby that after Vidyanand Yadav (appellant
of the second case) had already fired gunshot on the chest of
the deceased, appellant Vidyanand Yadav had fired from the
gun he was holding in his hand in order to scare the people and
only then he had become unconscious, thus we do not find any
contradiction in his statement, hence his evidence cannot be
stated to be untrustworthy. As regards PW 4, Ravi Yadav, the
learned senior counsel for the appellant has pointed out that
PW 1 has stated in his cross examination that his father had
become unconscious after bhala was thrown on his body and
he was assaulted by others and had regained consciousness in
the hospital as also PW 4 has stated in his deposition that he
had fallen immediately upon being assaulted and had regained
consciousness in the hospital, however we find that the
appellants have not been able to draw any major inconsistency
in the evidence of PW 4 and moreover by the time PW 4 had
been assaulted, Vidyanand Yadav (appellant of the second
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case) had already fired gunshot on the chest of the deceased,
thus we find that PW 4 has deposed consistently. It is a well
settled law that minor divergences, if any in the prosecution’s
evidence being insignificant in nature, cannot have any effect
on the case of the prosecution, in case overwhelming
incriminating evidences have been adduced at the trial to
establish the guilt of the appellants. It would not be out of
place to mention that it is the case of the defence, as canvassed
by the Ld. Senior Counsel for the appellants that PW 4 Ravi
Yadav and his wife Murti Devi (W 3) had not been assaulted,
thus in such view of the matter, PW 4 could not have become
unconscious.
36. We, thus find that the prosecution’s narrative in the FIR
with regard to Vidyanand Yadav (appellant of the second case)
having fired gunshot on the chest of Dilip Kumar Yadav
(deceased), leading to his death is fully supported by the ocular
evidence adduced at the trial, especially that of PW 1 Rajesh
Kumar Yadav and PW 4 Ravi Yadav and the same stands
corroborated by the medical evidence inasmuch as PW 12 Dr.
Vijay Kumar Agrawal, who had conducted post-mortem
examination of the dead body of the deceased has not only
found lacerated punctured wound 1 ½”x ¾” x Thoracic cavity
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deep over the right side of the chest wall, 3″ medial to the right
nipple inverted in shape indicating wound of entry but has also
opined that the cause of death is hemorrhage and shock leading
to cardio-respiratory failure caused by fire arm, apart from the
fact that the said Doctor had also taken out a bullet from the
dead body and handed over the same to the constable.
It is a well settled law that it is not the number or
quantity but the quality that is material while considering the
testimony of an eye witness though he may be the sole/single
witness, which is the mandate and logic of Section 134 of the
Indian Evidence Act, 1872. In the present case, as far as
evidence of PW 1 and PW 4 is concerned their evidence is
truthful, cogent, credible and trustworthy, hence relying on
their testimony, we can safely conclude that the allegation
levelled against Vidyanand Yadav (appellant of the second
case), regarding him having fired gunshot on the chest of Dilip
Yadav (deceased) leading to his death stands proved beyond
pale of any reasonable doubt, thus as far as conviction of
Vidyanand Yadav (appellant of the second case) under Section
302 of the I.P.C. and Section 27 of the Arms Act is concerned,
we do not find any apparent error in the impugned judgment of
conviction and sentence, hence the same does not require any
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interference. We also find that Vidyanand Yadav (appellant of
the second case) has been convicted by the Ld. Trial Judge
under Sections 147, 148, 323, 324, 307 and 120B of Indian
Penal Code, however in view of the fact that we have upheld
his conviction under Section 302 of I.P.C. and Section 27 of the
Arms Act, the same loses significance apart from the fact that a
bare perusal of the evidence would show that though it stands
proved that Vidyanand Yadav (appellant of the second case)
had fired gunshot on the chest of Dilip Yadav (deceased)
leading to his death, however there is no evidence to show that
he had either assaulted the informant or any other family
member.
37. At this juncture, we may hasten to add that as far as the
appellants of the first case are concerned, though some of them
have been alleged to have assaulted the informant (PW 4) and
his wife, however the prosecution has failed to bring on record/
exhibit any Injury Report of the said injured witnesses much
less produce or adduce the evidence of the Doctor who had
treated them, thus we find that no evidence is available on
record of the case to show their complicity in the said
occurrence, hence it would not be safe to hold the appellants of
the first case guilty of the offences alleged qua them, especially
Patna High Court CR. APP (DB) No.173 of 2016 dt.04-04-2025
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in view of the testimony of PW 4 (Ravi Yadav), who has
categorically stated in his cross examination that except
Vidyanand Yadav (appellant of the second case) none of the
other accused had assaulted Dilip Yadav and rest of the
accused persons were standing quietly at a distance of 2-3
bamboo length, meaning thereby that the appellants of the first
case had no role to play in the alleged occurrence and
moreover, we find that neither any evidence has been brought
forth to show meeting of minds between the aforesaid
Appellants for the intended object of committing an illegal act
nor there is any evidence to establish that there was an
agreement between the Appellants for doing an unlawful act,
therefore the charge of conspiracy under Section 120-B of IPC
also does not stand proved, consequently, the Appellants of the
first case cannot also be convicted under Section 302 of IPC
with the aid of Section 120B of IPC. Inexorably, we are of the
considered opinion that the Ld. Trial Judge was required to
acquit the appellants of the first case by extending the benefit
of doubt, however the Ld. Trial Judge has committed error in
not appreciating the evidence, especially that of PW 4, as
aforesaid in its right perspective, hence the impugned judgment
of conviction and sentence, as far as the appellants of the first
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case i.e Criminal Appeal (DB) No. 173 of 2016 are concerned,
is fit to be set aside.
38. Now coming to the issues raised by the learned senior
counsel for the appellants, it has been firstly contended that
non-examination of the Investigating Officer has caused great
prejudice to the appellants. In this regard it would suffice to
state that merely arguing such an issue without pointing out
any prejudice to have been caused to the defence on account of
non-examination of the Investigating Officer would not hold
any ground. In fact, defence has failed to raise any doubt upon
the oral testimony of PW 1 and PW 4 and moreover, it has not
been able to elicit any contradictions in the testimony of the
said witnesses thus non-examination of the Investigating
Officer in the present case will not be fatal to the prosecution
case. Thus, we have no hesitation to hold that in the backdrop
of cogent, creditworthy and unshaken testimony of PW 1 and
PW 4, the issue of non-examination of Investigating Officer
gets relegated to the background and is not a vital
consideration in the facts of the present case.
39. As far as the law laid down by the Hon’ble Apex Court,
on the issue of non-examination of the Investigating Officer is
concerned, we would like to refer to a Judgment rendered by
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the Hon’ble Apex Court in the case of Behari Prasad Vs. State
of Bihar, reported in (1996) 2 SCC 317, wherein it has been
held that non-examination of the Investigating Officer is not
fatal to the prosecution case, especially when no prejudice is
likely to be suffered by the accused. It has also been clarified
in the said judgment that a case of prejudice likely to be
suffered by an accused must depend on the facts of the case
and no universal straight jacket formula should be laid down
that non examination of Investigating Officer per se vitiates a
criminal trial. The view of the Hon’ble Supreme Court in yet
another judgment, reported in (2000) 9 SCC 153, rendered in
the case of Bahadur Naik vs. State of Bihar is that non-
examination of the Investigating Officer as a witness for
prosecution is of no consequence when no material
contradictions have been brought out and it has also not been
shown as to what prejudice has been caused to the appellant
due to such non-examination, especially in a situation when the
accused has not been able to otherwise shake the credibility of
the prosecution witnesses.
40. As far as the issue of non-determination of the nature of
weapon used as also the place of occurrence not being
established, we find that in view of the overwhelming evidence
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of PW 1 and PW 4, the said issue does not gain any
importance. Now coming to the other issue raised by the
learned senior counsel for the appellants that the fardbeyan has
neither been exhibited nor been proved, we find that PW 7
Yogendra Yadav has proved the formal FIR and has also
identified the signature of the then Sub-Inspector of Police,
Triveniganj Police Station, which has also been marked as
Exhibit-1 and fardbeyan is a part of the same. Moreover, we
would like to refer to the observations of the Hon’ble Supreme
Court of India in the case of Krishna Mochi and Ors. vs State
of Bihar, reported in (2002) 6 SCC 81, wherein it has been
held that even if the First Information Report is not proved, it
would not be a ground for acquittal but the case would depend
upon the evidence led by the prosecution. In the present case,
PW 1 and PW 4 have fully supported the occurrence as
narrated in the fardbeyan/FIR as far as the allegations levelled
against the appellant of the second case is concerned, hence
merely because the fardbeyan has not been exhibited, the same
has neither caused any prejudice to the appellants nor it makes
any material difference.
41. Thus, taking into account an overall perspective of the
entire case, emerging out of the totality of the facts and
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circumstances, as indicated hereinabove we, by way of
extending benefit of doubt, acquit all the appellants of the first
case i.e. appellants of Criminal Appeal (DB) No.173 of 2016
and set aside the judgment of their conviction and sentence
dated 29.01.2016 and 09.02.2016 respectively, passed by the
Ld. Trial Judge in Sessions Trial No.138 of 1994, consequently
the said appeal stands allowed. The appellants of the first case,
namely (1) Bhupendra Yadav (2) Bhagwat Yadav (3) Rajendra
Yadav (4) Luxmi Yadav (5) Binod Yadav (6) Yogendra Yadav
(7) Mahendra Yadav, respectively are on bail, hence they are
discharged from the liability of their bail bonds.
42. As far as Vidyanand Yadav (appellant of the second
case) is concerned, based on a conspectus of the aforesaid facts
and circumstances and for the reasons mentioned hereinabove,
we find that there is no reason to create any doubt about the
guilt of the said appellant (Vidyanand Yadav) in the alleged
occurrence, which stands proved beyond all reasonable doubts,
hence we do not find any error apparent in the impugned
judgment of conviction and sentence qua Vidyanand Yadav
(appellant of the second case), thus the same does not require
any interference. Accordingly, the said appeal i.e. Criminal
Appeal (DB) No.315 of 2016 stands dismissed and the
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appellant (Vidyanand Yadav), who is already in custody is
directed to serve the remaining sentence i.e. imprisonment for
life under Section 302 of I.P.C. with fine of Rs.10,000/- as also
rigorous imprisonment for 3 years under Section 27 of the
Arms Act, however both the sentences shall run concurrently.
(Mohit Kumar Shah, J)
I agree
Nani Tagia, J:
( Nani Tagia, J)
sonal/-
AFR/NAFR AFR CAV DATE 17.02.2025 Uploading Date 04.04.2025 Transmission Date 04.04.2025
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