Jharkhand High Court
Gholtu Yadav vs The State Of Bihar ….. Opp. Party on 1 August, 2025
Bench: Sujit Narayan Prasad, Rajesh Kumar
2025:JHHC:21415-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
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Cr. Appeal No. 120 of 1997 (DB)
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(Against the judgment of conviction dated 5th March, 1997 and
order of sentence dated 11th March, 1997, passed by learned
Additional Sessions Judge 1st, Godda in Sessions Trial No.249 of
1984/42 of 1988)
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1.Gholtu Yadav
2.Vinodi Yadav
3.Mohan Yadav
Sons of late Chokru Yadav
4.Laxman Yadav son of Bhujangi Yadav
5.Raghu Yadav son of Late Titku Yadav
6.Dhuri Yadav son of Late Bongi Yadava
7.Sheonath Yadav son of Damodar Yadav.
8.Bishu Yadav son of Damodar Yadav
9.Jainath Yadav alias Vidyanath Yadav son of Damodar
Yadav.
10.Sitaram Yadav son of late Kutai Yadav
11.Naresh Yadav
12.Suresh Yadav
sons of late Pushu Yadav
Appellants no. 1 to 3 are resident of village Ghat
Dharmapur, appellant no. 4 is of village Pirozpur, appellant
5 and 6 of village Ghat Dharampur (Nabtoli) and appellants
no. 7 to 12 of village Dharampur Mal (Garh), all of P.S.
Mahagama, District: Godda.
.... Appellants
Versus
The State of Bihar ..... Opp. Party
PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE RAJESH KUMAR
.....
For the Appellants : Mr. A.K. Kashyap, Sr. Advocate
Mr. Manoj Kumar Sah, Advoate
For the State : Mrs. Priya Shrestha, Spl. P.P.
.....
C.A.V. on 08/07/2025 Pronounced on 01/08/2025
Per Sujit Narayan Prasad, J.:
2025:JHHC:21415-DB
1. Before proceeding further, it would be apt to mention
herein that in compliance of the order passed by this
Court, affidavit has been filed on behalf of respondent-
State, annexing therewith the letter of Officer-in-Charge,
Mahgama Police Station, Godda issued vide Memo No.
63/2025 dated 29.01.2025, who after verification has
found that out of the 22 appellants, only 12 appellants as
named above, have been found to be alive, in support
thereof, the copy of their Adhar Card with their
signature/thumb impression has been annexed with the
affidavit. Further, in support of the dead appellants, the
death certificate and in absence thereof the certificate of
Mukhiya has been annexed with the affidavit.
2. Taking into consideration the pleading as made in the
aforesaid affidavit, the Co-ordinate Bench vide order
07.07.2025 has abated the appeal against the said 10
appellants and the instant appeal is pending
consideration for the surviving 12 above named
appellants. For ready reference, order dated 07.07.2025
passed by this Court is quoted as under:
Affidavit has been filed in pursuance to the order
dated 09.01.2025 passed by Coordinate Bench of this
Court regarding the live status of one or the other
appellants.
2. The details have been furnished in the said affidavit.
Although Mr. Bhola Nath Ojha, learned Special Public
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Prosecutor appearing for the State, has submitted that
some typographical error has crept up in paragraphs 2 and
3 of the affidavit in making reference of the names which is
apparent from the face of Annexure-A Series available at
page-7, therefore, he has prayed to allow him to press
page7 only leaving aside the statement made at
paragraphs 2 and 3 of the affidavit.
3. It has been submitted by referring the name of Baiju
Yadav (Appellant No.4), Bhujangi Yadav (Appellant No.6),
Banarsi Yadav (Appellant No.7), Kavati Yadav alias Kitabi
Yadav alias Kamati Yadav (Appellant No.9), Damodar
Yadav (Appellant No.11), Rajendra Yadav (Appellant
No.16), 2 Guresh Yadav (Appellant No.17), Dukhan Yadav
(Appellant No.18), Hira Yadav alias Hari Yadav (Appellant
No.21) and Chhabbu Yadav (Appellant No.22) that they
have died, therefore, prayer has been made to abet the
appeal so far as it relates to the aforesaid appellants.
4. The aforesaid fact has not been disputed by learned
senior counsel.
5. No application by any of the legal heirs of the appellants
abovenamed has been filed to pursue the matter on behalf
of the abovenamed appellants.
6. Since no application has been filed by the legal heirs of
any of the aforesaid appellants, said to be died, as also
considering Annexure-A as available at page-7 to the
counter affidavit, the appeal is abetted so far as it relates
to Baiju Yadav (Appellant No.4), Bhujangi Yadav
(Appellant No.6), Banarsi Yadav (Appellant No.7), Kavati
Yadav alias Kitabi Yadav alias Kamati Yadav (Appellant
No.9), Damodar Yadav (Appellant No.11), Rajendra Yadav
(Appellant No.16), Guresh Yadav (Appellant No.17),
Dukhan Yadav (Appellant No.18), Hira Yadav alias Hari
Yadav (Appellant No.21) and Chhabbu Yadav (Appellant
No.22) is concerned.
7. Mr. A.K.Kashyap, learned senior counsel has argued the
matter but due to paucity of time argument could not be
concluded.
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8. Let this matter be listed tomorrow, i.e., on 08.07.2025.”
Prayer:
3. The instant appeal has been filed under Section 374 (2)
of the Code of Criminal Procedure against judgment of
conviction dated 5th March, 1997 and order of sentence
dated 11th March, 1997, passed by learned Additional
Sessions Judge 1st, Godda in Sessions Trial No.249 of
1984/42 of 1988, by which the appellants have been
convicted under Sections 148 of the Indian Penal Code
and sentenced them to undergo RI for three years and
the appellants have further been convicted under Section
307 r/w 149 IPC and sentenced to undergo RI for life.
Appellants no. 1 to 3 have further been convicted under
Section 302 of the Indian Penal Code and the appellants
4 to 12 have been convicted under Section 302/149 IPC
and were sentenced to undergo imprisonment for life and
all the sentences are ordered to run concurrently.
Prosecution Case:
4. This Court, before proceeding to examine the legality and
propriety of the judgment of conviction and order of
sentence, deems it fit and proper to refer the background
of institution of prosecution case
5. The prosecution case, in brief, as per fardbeyan dated
16.08.1980, of the informant Suresh Yadav (P.W-5) is
4
2025:JHHC:21415-DBthat one day prior to the date of occurrence, there was
altercation between the informant and his uncle Chakru
Yadav at Bagicha Bahiyar, on issue of depositing soil on
the ridge. On 16.8.1980 in the morning, the informant
alongwith his father named Bhukhru Yadav, brother
named Naresh Yadav, maternal uncle(mama) Sudan
Yadav and Ludan Yadav were working in the field in
Dhabara Bahiyar. The informant, Naresh Yadav and
Sudan Yadav were uprooting seed of paddy. Bhukhru
Yadav vas ploughing the field and Ludan Yadav was
working with spade [Kudal]. Some other persons were
also working in the vicinity. Then about 10.00 o’clock,
Chakru Yadav, Paltu Yadav, Gholtu Yadav and others
came armed with garashan, bhala, lathi, Spade forming
an unlawful assembly. They cut the ridge of the field of
the Informant. The informant party did not go there out
of fear. Then Chakru Yadav exhorted why they did not
obstruct in cutting the ridge. At this the Informant said
that they did not object out of fear and to this Chakru
Yadav questioned as to why he (the Informant) was
talking with him the previous day. Then all the accused
persons surrounded them and began to assault
informant party with lathis, garansa and bhala. Sudan
was assaulted by Chakru, Paltu, Gholtu, Vinodi and Sri
Mohan with garasa on his hand, waist, back as a result
5
2025:JHHC:21415-DBSudan Yadav fell down there. Baiju Yadav assaulted
Bhukhru Yadav with garasa and other accused with lathi
and he also fell down. Naresh was assaulted by Dasarath
Yadav with garasa and others with lathi and he also fell
down there. Dukhan Yadav assaulted Ludan Yadav with
garasa and other accused assaulted with lathi. Accused
Damodar Yadav, Shiv Nath Yadav, Bishu Yadav and Jay
Nath Yadav assaulted informant with lathi. Then the
accused fled away. Informant further stated that Sudan
Yadav, due to injury, became unconscious. Injured
Sudan Yadav and Naresh Yadav, on cot, and other
injured went for Mahegama. Sudan Yadav was gasping,
so, they came to Mahegama Hospital, but, as soon as
they reached the hospital, Sudan Yadav died.
6. On the basis of fardbeyan of informant, First
Information Report being Mahagama P.S. Case No. 6
dated 16.08.1080 was registered under Sections 147,
148, 149, 341, 307, 324, 447 and 302 IPC. After
completion of investigation, the I.O. submitted charge-
sheet against the accused persons and cognizance of the
offence was taken against the aforesaid accused persons,
which being exclusively triable by court of Sessions, case
was committed to the Court of Sessions.
7. On the above allegation, Gholtu, Vinodi and Sri Mohan
were charged u/s-302 I.P.C for committing murder of
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Sudan Yadav. The rest persons who were facing trial has
been charged under Section 302/149 I.P.C for
committing murder of Sudan Yadav in furtherance of
their common object. All the named accused persons
were charged u/s-148 and 307/149 I.P.C for forming an
unlawful assembly with deadly weapon, such as garasa,
bhala and lathi and for attempting to commit murder of
Bhukhru Yadav, Ladan Yadav, Naresh Yadav and Suresh
Yadav.
8. The accused persons pleaded not guilty and claimed to
be tried, accordingly, trial was proceeded.
9. During trial, in order to prove its case, the prosecution
has examined altogether eight witnesses, namely,
Haldhar Yadav [PW 1]; Haribol Yadav [PW 2]; Ludan
Yadav [PW 3]; Ganesh Yadav [PW 4]; Suresh Yadav [PW
5], who is informant of the case; Naresh Yadav [PW 6];
Jagdish Yadav [PW 7] and Dr. Vasudeo Prasad Sinha [PW
8]. Out of that P.W 1 and PW 2 have been declared
hostile.
10. The trial Court, after recording the evidence of
witnesses, examination-in-chief and cross-examination,
recorded the statement of the accused persons and found
the charges levelled against the appellants proved beyond
all reasonable doubts. Accordingly, the appellants had
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been found guilty and convicted, as stated above, which
is the subject matter of instant appeal.
Submission of the learned Senior counsel for the appellants:
11. Mr. A.K. Kashyap, learned senior counsel assisted by
Manoj Kumar Sah, learned counsel appearing for the
surviving appellants has assailed the impugned
judgment of conviction and order of sentence on the
following grounds:
I. Prosecution has miserably failed in proving the
charge leveled against the appellants and learned
trial court has committed error of law in
evaluating and analyzing the evidence in coming
to the conclusion.
II. The learned trial court has failed to consider the
value of the evidence of P.W 1 and P.W 2 and no
reason has been assigned for their non-
evaluation though they have been claimed as eye-
witnesses by the informant.
III. Further, the investigation in the case at hand has
been done in a haphazardly manner and there
are many discrepancies and inconsistency in the
testimony of the witnesses in particular the
testimony which is fatal to the prosecution case.
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IV. In the case at hand, neither the FIR nor the
fardbeyan has been proved and exhibited.
V. Furthermore, in order to prove the case falling
under Section 302 IPC, the inquest report has
not been brought on record. Further, in the case
at hand neither the doctor, who conducted the
Post Mortem was examined nor the Post Mortem
report has been brought on record by the
prosecution.
VI. Even in the case at hand, no case under Section
307 IPC is made out even accepting the
prosecution version to be true as the injury
report of the injured shows that none of the
injury is shown to be grievous in nature.
VII. Further submission has been made even
accepting the case of the prosecution to be true
at best the case of the appellants falls under
Section 323 IPC.
VIII. In the case at hand, P.W. 1 and 2 have been
declared hostile; P.W 8 is the doctor, a formal
witness and rest other witnesses are interested
witnesses. P.W. 5 Suresh Yadav, who is
informant of the case, his statement is not
systematic rather full of contradictions. P.W. 4,
Ganesh Yadav, who is allegedly an eye witness,
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has stated in his cross-examination that he saw
Chakru, Paltu, Titku and Dasrath on the one
side and Sudan (deceased), Suresh, Naresh,
Ludan, Jagdish and Bhokru on the other side
and they were fighting but this witness has not
stated anything regarding the appellants. P.W. 5,
6, and 7 are the full brothers as well as injured
and they have presented a new story against the
FIR.
IX. Submission has been made that the statement of
P.W. 3 was not recorded under section 161
Cr.P.C. and for the first time, he deposed before
the trial court.
X. Place of occurrence was not ascertained in want
of sketch map and due to non-appearance of the
Investigating Officer prejudice has been caused to
the appellants/accused.
XI. Neither the blood-stained earth from the place of
occurrence nor the blood-stained cloths were
produced and exhibited by the prosecution.
XII. Further submission has been made that the
prosecution withheld the material witnesses,
namely, Sk. Allaudi; Sk. Chaugh alias Noor
Mohammad; Sk. Gafoor; Jamuna Singh; Doctor
R. Chanani, S.I. N. Mishra and M.N. Modi,
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although they were the charge-sheeted witnesses
and the trial remained pending for 13 years.
XIII. Submission has been made that though
conviction of other appellants is by taking aid of
Section 149 of the Indian Penal Code but there is
no direct complicity to attract the ingredient of
Section 149 IPC, as such Section 149 IPC will not
be applicable so far other appellants are
concerned.
12. Learned counsel for the appellants, in the backdrop of
aforesaid grounds, has submitted that the judgment of
conviction and order of sentence since is not based upon
cogent evidence and as such it cannot be said that the
prosecution has been able to prove the charge beyond all
reasonable doubt.
Submission of the learned APP for the State:
13. Per Contra, learned Additional Public Prosecutor
appearing on behalf of State has defended the impugned
judgment of conviction and order of sentence taking the
ground that the impugned judgment has been passed
based upon the testimony of witnesses who have
supported the prosecution version.
14. Submission has been made that it is a case where one
person was murdered and attempts were done to commit
murder of four other persons. Out of those four injured
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one Bhukhru Yadav died. The rest three are alive and
they have supported prosecution version while deposing
the testimonies. In support of their injuries the doctor
has been examined, who has supported the prosecution
version. As such only because the inquest report of the
deceased has not been brought on record, the case of the
prosecution cannot be disbelieved.
15. Submission has been made that it is case where the
appellants/accused persons forming an unlawful
assembly with pre-determination of mind formed an
unlawful assembly with a common object of committing
murder of the deceased has used the deadly weapons like
bhala, garasa etc. a sharp-edged weapon on the vital part
of the body of the injured. Therefore, Section 149 IPC is
attracted in the case at hand.
16. Further submission has been made that even there is
minor discrepancies in the testimonies the case of the
prosecution cannot be disbelieved.
17. Learned State counsel based upon the aforesaid
ground has submitted that the prosecution has been able
to prove the guilt of the appellants beyond all reasonable
doubt.
Analysis
18. We have heard learned counsel for the parties,
perused the documents available on record and the
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testimony of witnesses as also the finding recorded by
learned trial Court in the impugned order.
19. This Court, on the basis of aforesaid factual aspect
vis-à-vis argument advanced on behalf of parties, is now
proceeding to examine the legality and propriety of
impugned judgment of conviction and order of sentence
by formulating following issues to be answered by this
Court:
(I). Whether non-examination of the doctor, who conducted
the Post Mortem and not bringing the the Post Mortem
report on record, vitiates the case of prosecution to fall
under Section 302 IPC?
(II). Whether the offence under Section 307/149 IPC is not
proved since as per the injury report of the injured injuries
are simple in nature?
(III).Whether non-examination of the I.O. in this case
where all the witnesses are alleged to be interested witness
is fatal to the prosecution case?
20. Since all the issues are inter-linked with each other
and as such they are being taken together by taking into
consideration the facts of the given case including the
testimony of witnesses.
21. This Court, in order to answer the issues framed by
this Court, first deems it fit and proper to go through the
testimony of witnesses examined by prosecution. For ready
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reference, the extract of their testimony is discussed
hereunder as.
22. P.W.1-Haldhar Yadav and P.W.2-Haribol Yadav have
been declared hostile by the prosecution. However, they
have been cross-examined both by the prosecution as
well as defence. But nothing fruitful has come from their
testimony.
23. P.W. 3-Ludan Yadav, is one of the injured. He has
stated that on that about 13 years ago on Saturday, he
was working in the field of Bhukru Yadav. Bhukru was
ploughing and he was working with spade. Then Chakru
along with Foltu, Paltu, Binodi and Sri Mohan came
there. Chakru was armed with spade and rest were
armed with garasa. Chakru started to cut the ridge of the
field of Bhukru Yadav. They came to the place where the
witness was working and questioned as to why they did
not object in cutting the ridge. At this Suresh, the
informant, stated that they did not object out of fear and
then quarrel between the parties started. On being asked
who was assaulting to whom, he replied that Paltu Yadav
with garasa to Sudan; Vinodi Yadav with Garasa to
Sudan; Vinodi Yadav and Sri Mohan Yadav with garasa
to Naresh.
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24. In cross-examination, P.W-3 has stated that the
darogaji did not take his statement and for the first time,
he is giving statement before this Court.
25. P.W. 4-Ganesh Yadav, has stated that he saw the
Sudan Yadav dead. He did not go to the place where
assault took place. He was working in the farm and saw
the occurrence from his farm. He further stated that
place of occurrence is 100 cubits away from his farm.
Nothing has come in his cross-examination.
26. P.W. 5-Suresh Yadav, is the informant of the case. He
has stated in his evidence that incident is 15-16 years
ago. He along with Naresh, Jagdish, Sudan Yadav, Ludan
Yadav, Bhukru Yadav were uprooting the seeds. In the
meantime, 26 persons, including the appellants armed
with bhala, lathi, spade, garasa came there. They cut the
ridge of the farm. Since it was the time of reaping of
seeds, water flown out from the farm, to which the
informant party resisted. Upon which they shouting the
slogan of ‘Jay Bajrang Bali’ and started beating them.
P.W-5 further deposed that Bhukru Yadav, Paltu, Bholti
Yadav, Vinodi Yadav and Sheomohan Yadav assaulted
with garasa to Sudan Yadav. Sri Mohan with the garasa
assaulted on the middle of the head as such there was
cut on the neck also. Sudan Yadav died while going to
police station. P.W-5 has further stated that Dasrath
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Yadav assaulted on the waist of Naresh Yadav. Baiju
Yadav assaulted with garasa to Bhukru Yadav. Dhukhan
Yadav assaulted with garasa to Ludan. The informant
was assaulted with lathi by Damodar Yadav. In cross-
examination, he has stated that blood-stained clothes
were seized by the investigating officer.
27. P.W. 6-Naresh Yadav, is one of the injured. He has
supported the prosecution version and narrated the
same story.P.W-6 deposed that he was assaulted by
Dasrath with garasa on his waist.
28. P.W. 7-Jagdish Yadav, is also one of the injured
persons. He has also supported the prosecution version
and narrated the same story except some variations.
29. P.W. 8-Dr. Vasudeo Prasad Sinha, is the doctor, who
examined the injured, namely, (1).Sudan Yadav; (2).
Bhokhani Yadav; (3). Naresh Yadav; (4). Suresh Yadav,
on 16.08.1980.
30. (1.) On examination of Sudan Yadav Sudan Yadav S/o
Munshi Yadav, Vill. Tangai P.S. Mahagama, aged about
50 year and found following injuries on his person:
(1) Sharp cutting injury 2 ½” X 1/2″x1/2″ extending from
middle of palm to the dorsan of the left hand.
2) Bruise 1″ X 1″ on middle of left parietal found.
(3) Bruise 1″X ½” on the back of lateral Candyl of humerur
of right hand.
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(4) Bruise 1″X ½” on the lateral side of the ankle joint of the
left leg just above the lateral malely.
(5) Bruise ½”X½” below the lateral malely of the right leg.
Doctor has proved the injury report of Sudan Yadav,
which was marked as Ext.-1.
(2.) On the same day doctor examined Bhukhru Yadav
S/o Dhelu Yadav vill Ghat Dharampur P.O. Tangai
P.S. Mahagama and found the following injury on his
person:
(1) Sharp cutting injury 5 ½”X 1/2 ” x3/4 ” on the dorsum
of left hand.
(2) Sharp cutting injury ½”X 1/4 “X1/6” on the middle of
head in midian plain.
Doctor has proved the injury report of Bhukhru Yadav,
which was marked as Ext.-1/1.
(3.) On the same day doctor examined Sri Naresh
Yadav S/o Bhoklam Yadav vill. Ghat Dharmapur P.O.
tangain P.S. Mahagama and found the following injury
on his person:
(1) Incised wound 4 ½”x 3/4″ x 3/4″ on the right side of
back of waist extending from waist up and to vertebral
column.
(2). Bruise and swelling 2″X 1″ on the right side of the
forehead.
.(3). Both the nostrils full of blood conjectira showing sub
conjestiral haemorrhage.
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Patient was semi conscious and both eye lids were swollen.
A sign of internal haemorrhage in skull probably from
anterior cranial fossa.
(4). Sharp cutting wound 1″ x ¼” x 1/6″ on the right side of
the occipital bone.
(5) Bruise 1″X ½” on the front of right knee.
Doctor has proved the injury report of Naresh
Yadav, which was marked as Ext.-1/2.
(4.) On the same day doctor examined Suresh Yadav
S/o Bhukhru Yadav of vill Ghat Dharampur P.S.
Tangain P.S. Mahagama Distt. Godda and found the
following injury:
Injury No. (1) Bruise (a) (b) (c)
(a) 1″X 1/2 ”
(b) 1½”X 1/2 ”
(c) 1″X 1/2 ”
All the three side by side on the deltoid muscles of the
left arm.
(2) Bruise 1″X1/2 ” on the right shoulder lateral side.
(3) Bruise and swelling 2″X1″ on the dorsum of the right
hand.
(4) Bruise 2″X1″ on the right scapular region of the back of
the chest.
Doctor has proved the injury report of Suresh Yadav,
which was marked as Ext.-1/3.
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31. From the testimony of the doctor, based upon the
injury report of the injured, it is evident that save and
except the injury inflicted upon injured Naresh Yadav, all
the injuries inflicted upon other injured persons are
admittedly simple in nature.
32. It is evident that it is a case where one person has
succumbed to injuries sustained to him alleged to attract
offence under Section 302 of the Indian Penal Code and
four persons have been injured, which are simple in
nature attracting offence under Section 307 of the Indian
Penal.
33. Therefore, this Court, on the basis of documents
available on record as exhibited and testimony of the
witnesses, is to see as to whether there is sufficient
material to attract offence under Section 302 and 307
IPC.
34. Now, coming to the case at hand, admittedly, the
inquest report has not been produced by the prosecution.
The purpose of producing the inquest report, prepared
under Section 174 Cr.P.C., is to record the
circumstances of a suspicious death, including the
injuries and observations at the scene. It can be crucial
especially in a case where limited number of witnesses
has been examined and if the inquest report is missing
the prosecution loses a key piece of evidence that could
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have supported their case. In absence thereof, it could be
harder for the prosecution to prove the ‘nature of
injuries’, ’cause of death’ and the ‘circumstances
surrounding the death’. The question arises, who could
be the best to describe the ‘nature of injuries’, ’cause of
death’ and the ‘circumstances surrounding the death’.
The obvious answer is – it is the doctor and the
investigating officer, who could have be the best to
describe about the inquest report. But, admittedly, in the
case at hand neither the doctor, who conducted post
mortem, has been examined who may have described
about the ‘nature of injuries’ and ’cause of death’ and in
absence thereof, it is not possible for the prosecution to
say anything about the ‘nature of injuries’ or ’cause of
death’ or ‘circumstances surrounding the death’. In
absentia thereof, if there is forensic report and/or any
other potentially circumstantial evidence, the prosecution
may have relied upon the same but admittedly there is
no such evidence i.e., neither there is forensic report or
any potential circumstantial evidence which could have
proved the case of murder beyond all reasonable doubt.
35. The second relatable piece of evidence, if any, with
respect to inquest report, is the testimony of police
officer/investigating officer, in whose presence the
inquest report was prepared because the inquest report
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includes information about the deceased, the place of
death and the time of death, a description of the body
and injuries and the investigating officer’s opinion on the
cause of death. But, in the case at hand the investigating
officer has not been examined.
36. It is settled position of law that the Investigating
Officer is responsible for gathering evidence, recording
statements and preparing the case for trial. The
testimony of the Investigating Officer is important for
explaining the investigating process, the evidence
collected and how it connects to the accused. In absence
of these elements, it certainly causes prejudice to the
accused and they would be unable to properly defend
themselves and it could lead to acquittal.
37. Reference in this regard be made to the judgment
rendered by the Hon’ble Apex Court in the case of
Munna Lal v. State of U.P., (2023) 18 SCC 661
wherein it has been held that whether or not non-
examination of investigating officer 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. For
ready reference the relevant paragraph of the aforesaid
judgment is being quoted as under:
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39.— 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 eyewitnesses 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 investigating officer.
40. In the facts of the present case, 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.
38. The Hon’ble Apex Court in the case of Lahu
Kamlakar Patil v. State of Maharashtra, (2013) 6
SCC 417 has observed the certain circumstances where
the examination of investigating officer becomes vital and
the explanation regarding non-examination of the I.O.
must be satisfactorily explained. The relevant paragraph
of the aforesaid Judgment is being quoted as under:
22
2025:JHHC:21415-DB
18. Keeping in view the aforesaid position of law, the
testimony of PW 1 has to be appreciated. He has
admitted his signature in the FIR but has given the
excuse that it was taken on a blank paper. The same
could have been clarified by the investigating officer, but
for some reason, the investigating officer has not been
examined by the prosecution. It is an accepted principle
that non-examination of the investigating officer is not
fatal to the prosecution case. In Behari Prasad v. State of
Bihar [(1996) 2 SCC 317 : 1996 SCC (Cri) 271] , this Court
has stated 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.
In Bahadur Naik v. State of Bihar [(2000) 9 SCC 153 :
2000 SCC (Cri) 1186] , it has been opined that when no
material contradictions have been brought out, then non-
examination of the investigating officer as a witness for
the prosecution is of no consequence and under such
circumstances, no prejudice is caused to the accused. It is
worthy to note that neither the trial Judge nor the High
Court has delved into the issue of non-examination of the
investigating officer. On a perusal of the entire material
brought on record, we find that no explanation has been
offered. The present case is one where we are inclined to
think so especially when the informant has stated that
the signature was taken while he was in a drunken
state, the panch witness had turned hostile and some of
the evidence adduced in the court did not find place in
the statement recorded under Section 161 of the Code.
Thus, this Court in Arvind Singh v. State of Bihar [(2001)
6 SCC 407 : 2001 SCC (Cri) 1148] , Rattanlal v. State of
J&K [(2007) 13 SCC 18 : (2009) 2 SCC (Cri) 349]
and Ravishwar Manjhi v. State of Jharkhand [(2008) 16
SCC 561 : (2010) 4 SCC (Cri) 50] , has explained certain
circumstances where the examination of investigating
officer becomes vital. We are disposed to think that the
present case is one where the investigating officer should23
2025:JHHC:21415-DBhave been examined and his non-examination creates a
lacuna in the case of the prosecution.
39. Herein admittedly due to non-examination of
investigating officer the place of alleged occurrence has
not been ascertained and further the statement of the
witnesses recorded under 161 Cr.P.C has also not been
fully substantiated. Further herein even the blood-
stained soil or the weapon which has been used in
alleged commission of crime has not been sent to the
FSL. Further due to non-examination of the investigating
officer/police officer the veracity of inquest report has not
been fully established.
40. Thus, in the aforesaid circumstance the testimony of
the Investigating Officer is important for explaining the
investigating process, the evidence collected and how it
connects to the accused. In absence of these elements, it
certainly causes prejudice to the accused as they would
be unable to properly defend themselves.
41. Further it is admitted case of the prosecution that the
Doctor who had conducted autopsy on the body of
deceased has not been examined and even post-mortem
report has not been brought on record which is the vital
piece of evidence in order to substantiate the testimonies
of the eyewitnesses.
24
2025:JHHC:21415-DB
42. It needs to refer herein that the Division Bench of the
High Court of the Jharkhand in the case of Sowam
Kisku and others Vs. The State of Bihar [2006 Cri L
J 2526] has observed that it is no doubt true that in
spite of the steps taken, the prosecution could not
procure the attendance of the doctor who conducted
autopsy over the dead body, but that could not have
precluded the prosecution from examining some other
doctor from the same hospital who knew the handwriting
and signature of the doctor who conducted autopsy.
43. But admittedly in the instant case prosecution had not
taken pain to examine other doctor of the same Hospital
who was acquainted with the signature and writing of the
said doctor who had conducted autopsy on the body of
the deceased and even the report has not placed on the
record.
44. If any other doctor had been examined who knew the
signature of the doctor who conducted the autopsy and if
he had given evidence as to the nature of post mortem
done and the injuries found by the doctor on the dead
body, then the appellants could have had an opportunity
of cross-examining the said doctor to say that the
injuries suffered by the deceased are not fatal in nature
and even if the deceased died on account of such
injuries, the accused-appellants could have taken a
25
2025:JHHC:21415-DB
defence to say that the said injuries are not sufficient in
the ordinary course of nature to cause the death of the
deceased or that the said injuries are only likely to cause
the death. The prosecution by not examining the doctor
denied the opportunity to the accused-appellants as they
were prevented from cross-examining the doctor.
45. It needs to refer herein that though Section 294 Cr.P.C
provides for no formal proof of certain documents, but it
cannot take the place of direct evidence of the doctor. It
refers to only that document which can be needed in
evidence and the wound certificate/ medical
report/postmortem report cannot be read in evidence
unless the doctor is examined or otherwise.
46. We, accordingly, hold that if a medical report/injury
report/post-mortem report is tendered in evidence by a
person who is not the author of the same, such evidence,
though admissible, would not have any probative value,
unless and until the same is proved by any other doctor,
as indicated above, who is equipped with medical science
and competent to answer the questions on the merits of
such report, as the defence would be deprived of cross-
examination with regard to the contents of the report.
47. In the case of State of U.P. v. Lakhmi, (1998) 4 SCC
336 the Hon’ble Apex Court has observed that No doubt
it is the duty of the prosecution to prove post-mortem
26
2025:JHHC:21415-DB
findings in murder cases, if they are available. Absence of
such proof in the prosecution evidence in a murder case
is a drawback for prosecution. For ready reference the
relevant paragraph of the aforesaid judgment is being
quoted as under:
15. Learned counsel for the respondent, however, pointed
out that as the doctor who conducted post-mortem
examination on the dead body was not put in the
witness-box in this case and it was argued on its
strength that in the absence of legally proved medical
evidence no finding can be reached that the deceased
died due to blows inflicted with “phali”. No reason is seen
noted by the trial court or the High Court for the non-
examination of the doctor who conducted the autopsy. No
doubt it is the duty of the prosecution to prove post-
mortem findings in murder cases, if they are available.
Absence of such proof in the prosecution evidence in a
murder case is a drawback for prosecution.—”
48. On consideration of the above legal preposition, we are
of the considered view that, non-examination of a
competent medical practitioner, would virtually amount
to denial of valuable right of the accused to cross-
examine the medical practitioner, who could have
addressed the intricacies of the said report.
49. Even ‘absence of inquest report’ and/or ‘non-
examination of the Investigating Officer and Medical
Officer does not ipso facto mean that the factum of
murder will fail, but it definitely weakens the case of the
prosecution. Therefore, this Court has to go the other
27
2025:JHHC:21415-DBmaterials available on record and the see the credibility
of the testimony of the witnesses in order to see as to
whether the case of the prosecution has been proved
beyond all reasonable doubt.
50. The Hon’ble Apex Court in catena of decision has
propounded the proposition that in the criminal trial,
there cannot be any conviction if the charge is not being
proved beyond all reasonable doubts, as has been held in
the case of Rang Bahadur Singh & Ors. Vrs. State of
U.P., reported in (2000) 3 SCC 454, wherein, at
paragraph-22, it has been held as under:-
“22. The amount of doubt which the Court would
entertain regarding the complicity of the appellants in
this case is much more than the level of reasonable
doubt. We are aware that acquitting the accused in a
case of this nature is not a matter of satisfaction for all
concerned. At the same time we remind ourselves of the
time-tested rule that acquittal of a guilty person should
be preferred to conviction of an innocent person. Unless
the prosecution establishes the guilt of the accused
beyond reasonable doubt a conviction cannot be passed
on the accused. A criminal court cannot afford to deprive
liberty of the appellants, lifelong liberty, without having
at least a reasonable level of certainty that the
appellants were the real culprits. We really entertain
doubt about the involvement of the appellants in the
crime.”
51. Likewise, the Hon’ble Apex Court in the case of
Krishnegowda & Ors. Vrs. State of Karnataka [(2017)
13 SCC 98], has held at paragraph-26 as under:-
28
2025:JHHC:21415-DB
“26. Having gone through the evidence of the
prosecution witnesses and the findings recorded by
the High Court we feel that the High Court has failed
to understand the fact that the guilt of the accused
has to be proved beyond reasonable doubt and this is
a classic case where at each and every stage of the
trial, there were lapses on the part of the
investigating agency and the evidence of the
witnesses is not trustworthy which can never be a
basis for conviction. The basic principle of criminal
jurisprudence is that the accused is presumed to be
innocent until his guilt is proved beyond reasonable
doubt.”
52. Further, it needs to refer herein the principle of
‘benefit of doubt’ belongs exclusively to criminal
jurisprudence. The pristine doctrine of ‘benefit of doubt’
can be invoked when there is reasonable doubt regarding
the guilt of the accused, reference in this regard may be
made to the judgment rendered by the Hon’ble Apex
Court in the case of State of Haryana Vrs. Bhagirath &
Ors., reported in (1999) 5 SCC 96, wherein, it has been
held at paragraph-7 as under: –
“7. The High Court had failed to consider the implication of the
evidence of the two eyewitnesses on the complicity of
Bhagirath particularly when the High Court found their
evidence reliable. The benefit of doubt was given to Bhagirath
“as a matter of abundant caution”. Unfortunately, the High
Court did not point out the area where there is such a doubt.
Any restraint by way of abundant caution need not be
entangled with the concept of the benefit of doubt. Abundant
caution is always desirable in all spheres of human activity.
But the principle of benefit of doubt belongs exclusively to29
2025:JHHC:21415-DBcriminal jurisprudence. The pristine doctrine of benefit of
doubt can be invoked when there is reasonable doubt
regarding the guilt of the accused. It is the reasonable doubt
which a conscientious judicial mind entertains on a
conspectus of the entire evidence that the accused might not
have committed the offence, which affords the benefit to the
accused at the end of the criminal trial. Benefit of doubt is not
a legal dosage to be administered at every segment of the
evidence, but an advantage to be afforded to the accused at
the final end after consideration of the entire evidence, if the
Judge conscientiously and reasonably entertains doubt
regarding the guilt of the accused.”
53. It needs to refer herein that the Hon’ble Apex Court, in
the case of Allarakha K. Mansuri v. State of
Gujarat reported in (2002) 3 SCC 57 has laid down the
principle that the golden thread which runs through the
web of administration of justice in criminal case is that if
two views are possible on the evidence adduced in the
case, one pointing to the guilt of the accused and the
other to his innocence, the view which is favourable to
the accused should be adopted, for reference, paragraph
6 thereof requires to be referred herein which reads
hereunder as :-
“6. ——The golden thread which runs through the web of
administration of justice in criminal case is that if two views
are possible on the evidence adduced in the case, one pointing
to the guilt of the accused and the other to his innocence, the
view which is favourable to the accused should be adopted. ”
54. It needs to refer herein before laying down the
aforesaid view, the Hon’ble Apex Court in the case of
30
2025:JHHC:21415-DB
Sharad Birdhichand Sarda v. State of Maharashtra
reported in (1984) 4 SCC 116 has already laid down
the same view at paragraph 163 which is required to
be referred which read hereunder as
“163. We then pass on to another important point which
seems to have been completely missed by the High Court. It
is well settled that where on the evidence two possibilities
are available or open, one which goes in favour of the
prosecution and the other which benefits an accused, the
accused is undoubtedly entitled to the benefit of doubt.—“
55. In the backdrop of the aforesaid settled position of law
this Court is now adverting to the factual aspects of this
case. Admittedly in the case at hand, P.W. 1 and 2 have
been declared hostile. P.W. 3-Lutan Yadav, in his cross-
examination has stated that his statement under section
161 Cr.P.C was not recorded and for the first time, he
deposed before the trial court.
56. P.W. 4, Ganesh Yadav, is allegedly an eye witness,
has stated in his cross-examination that he saw Chakru,
Paltu, Titku and Dasrath on the one side and Suddan
(deceased), Suresh, Naresh, Ludan, Jagdish and Bhokru
on the other side and they were fighting but this witness
has not stated anything regarding the appellants.
Further, P.W. 5, 6, and 7 are the full brothers as well as
injured and they have presented a new story against the
FIR.
31
2025:JHHC:21415-DB
57. Therefore, it is evident that only interested witnesses
have been examined, however the incident has occurred
in broad day light. The material witnesses, who are the
independent witnesses and the charge-sheeted
witnesses, namely, Sk. Allaudi; Sk. Chaugh alias Noor
Mohammad; Sk. Gafoor; Jamuna Singh; Doctor R.
Chanani, S.I. N. Mishra and M.N. Modi, have not been
examined though the trial remained pending for 17
years. Not only that neither the blood-stained earth from
the place of occurrence nor the blood-stained cloths were
produced and exhibited by the prosecution, which are
the vital piece of material evidence in such type of case.
58. This Court, on the aforesaid ground i.e., non-
production of the inquest report and non-examination of
the doctor who conducted post mortem and non-
examination of the investigating officer though the trial
took about 17 years, besides other grounds, as discussed
in the preceding paragraph, is of the view that the
prosecution has miserably failed to prove the charge
under Section 302 IPC against the appellants no. 1 to 3.,
beyond all reasonable doubt. In consequence of falling of
charge under Section 302 IPC, charge against the
Appellant no. 4 to 12 under section 302/149 of IPC is
also not proved.
32
2025:JHHC:21415-DB
59. Further ground has been taken that no case under
Section 307/149 IPC is made out even accepting the
prosecution version to be true as the injury report of the
injured shows that none of the injury is shown to be
grievous in nature.
60. This Court, in order to reach such conclusion, has
gone through first the injury report of the injured and the
deposition of the doctor, who has been examined as P.W.
8-Dr. Vasudeo Prasad Sinha, who has examined the
injured, namely, (1).Sudan Yadav(deceased) (2).
Bhokhani Yadav; (3). Naresh Yadav; (4). Suresh Yadav.
From the deposition, it is amply clear that all the injury
inflicted upon the injured are simple in nature, save and
except an injury no.3 inflicted upon Naresh Yadav, which
is stated to be grievous in nature. But, ongoing through
the injury report Ext.-1/2 of Naresh Yadav, this court
finds that doctor has noted in injury no. 3 that there was
a sign of internal hemorrhage in skull probably from
anterior cranial fossa, but, at para-12 of his cross-
examination, doctor has admitted that he did not get the
X-ray. Hence, without seeing the X-report, doctor stated
that there was sign of internal hemorrhage in the skull
and said that injury no. 3 was grievous and this raises
doubt as to nature of injury no. 3 sustained by Naresh
Yadav.
33
2025:JHHC:21415-DB
61. Section 307 of the Indian Penal Code deals with the
offence of attempt to murder. The key ingredients for this
offence are -(1).intention or knowledge to commit
murder; (2).an act towards committing the offence;
and(3).the act must be such that if death were caused it
would amount to murder.
62. This Court on the basis of pleadings available on
record is to see whether these ingredients are available in
the case at hand or not so as to attract the penal offence
under Section 307 IPC.
63. For this, this Court has again gone into the factual
aspect of the matter. Admittedly, for cutting the ridge of
the farm resulting into water flown out from the farm, a
sudden dispute between the parties arose as a result of
which, the appellants including other accused persons
assaulted the informant party with spade and garasa due
to which people of the informant’s side have sustained
injuries, which are found to be simple in nature.
64. From the testimonies of the witnesses, it is evident
that though the appellants have been found to have
caused injury upon the injured but it lacks intent or
knowledge to commit murder and even the injuries
sustained are simple in nature. So far offence under
Section 307 IPC is concerned, it requires proof of
34
2025:JHHC:21415-DBintention or knowledge to murder and the act done would
have caused death.
65. This Court, therefore, is of the view that in the case at
hand the offence under Section 307 is not attracted. But,
as per the injury report, the injury has been inflicted
upon the injured though they are simple in nature.
Therefore, in the case at hand, it cannot be said that the
appellants had ever intention or knowledge to attempt
murder and the act of assault and circumstances in
which a dispute arose between the parties over the issue
of cutting of ridge of the farm, does not constitute the
offence under Section 307 IPC.
66. Therefore, this Court is of the view that the
prosecution has failed to prove the charge for the offence
said to have been committed under Section 307/149 IPC
by the appellants beyond all reasonable doubt.
67. But the fact remains, as per the testimony available on
record that there are injuries on the person of the
injured, as per testimony of the doctor.
68. Learned counsel for the appellant has submitted that
since there lacks intention to kill by the appellants and
the injuries are minor in nature, therefore, at best the
case of the appellants would fall within the ambit of
Section 323 IPC.
35
2025:JHHC:21415-DB
69. This Court since has already come to the conclusion
that there was lack of intention to kill by the appellants,
therefore, this Court has to see whether there are other
ingredients attracting the offence under Section 323 IPC
are available or not.
70. Admittedly, the key difference attracting offence under
Section 307 and 323 IPC is the intention or knowledge of
the accused, besides other factors are the nature of
injuries; weapon used and the evidence presented by the
prosecution. So far as nature of injuries is concerned,
admittedly it is simple in nature. The other factor, the
weapon used, as per the testimony of the witnesses, the
Garasa and the spade which was used in farm was used.
Certainly, if there would have been intention to kill, the
weapon alleged used may have caused grievous injury
but that is not the case herein. In this respect, this Court
has again gone through the testimony of the witnesses
and found therefrom that most of the witnesses are
interested witnesses and injured are the full brothers of
the informant even though independent charge-sheeted
witnesses were there but the prosecution did not
examine those witnesses thought the trial took 17 years
to conclude.
71. In this situation, considering the nature of injuries,
which are simple in nature, this Court finds that the case
36
2025:JHHC:21415-DBagainst the appellants for attempt to murder is not
proved but at most, the case of appellants is found to be
proved under Section 323 of IPC.
72. In that view of the matter it is considered view of this
Court that the appellants are hereby guilty for offence
punishable under Section 323 IPC and the appellants are
hereby sentenced to the period already undergone by
them.
73. So far as conviction of all the appellants under section
148 of IPC is concerned, this court has acquitted the
appellants under sections 302, 302/149 and 307/149,
as discussed in the preceding paragraph. Further, four
injured namely, (1). Sudan Yadav; (2). Bhokhani Yadav;
(3). Naresh Yadav; (4). Suresh Yadav, were examined by
the Doctor P.W-8 and doctor found all the injuries
sustained by the injured were simple in nature, hence,
seeing the nature of injuries sustained by the injured,
which are simple in nature, conviction of the appellants
under section 148 of IPC becomes doubtful and is set
aside.
74. Since the appellants are on bail, they are discharged
from liabilities of bail bonds.
75. Accordingly, the instant appeal is hereby disposed of
with aforesaid observation.
37
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76. Let the Lower Court Records be sent back to the Court
concerned forthwith, along with a copy of this Judgment.
77. Pending Interlocutory Application(s), if any, stands
disposed of.
I Agree (Sujit Narayan Prasad, J.)
(Rajesh Kumar, J.) (Rajesh Kumar, J.)
Jharkhand High Court, Ranchi
Alankar / A.F.R.
38