Patna High Court
BIMAL YADAV AND ANRversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
Holding
The conviction under IPC 302/34 was set aside and the appellants were acquitted because the prosecution failed to prove the case beyond reasonable doubt.
Summary
The appellants Bimal, Amar and Kamal Yadav were convicted for murder (IPC 302) and related offences based on the testimony of family members and an informant who claimed the victim, Dashrath Yadav, was assaulted. The defence argued that the victim died in a road accident and that the witnesses were chance or interested witnesses with inconsistent statements. The trial court accepted the prosecution’s case, but on appeal the High Court examined the reliability of the eyewitnesses, the medical evidence indicating injuries consistent with an accident, and the lack of independent corroboration. Finding serious contradictions and unreliability in the key witnesses, the Court held that the prosecution had not discharged the burden of proof beyond reasonable doubt. Consequently, the convictions were set aside and the appellants were acquitted.
Issues considered
- Whether the testimony of family members and the informant qualifies as reliable evidence or is discredited as chance/interested witnesses.
- Whether the prosecution proved the murder of Dashrath Yadav beyond reasonable doubt under IPC 302/34.
- Whether the injuries sustained by the deceased were caused by assault or by a road accident.
- Whether the medical autopsy findings support the prosecution’s version of assault.
- Whether the procedural compliance of the FIR and investigation under Cr.P.C. §§207, 209, 313 was satisfactory.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 207, 209, 313
- Indian Penal Code — s. 302, 323, 325, 34, 341, 379
Subjects
- murder
- homicide
- eyewitness testimony
- chance witness
- reasonable doubt
- acquittal
- IPC
- CrPC
- medical autopsy
- family witness
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.100 of 2019
Arising Out of PS. Case No.-91 Year-2016 Thana- JAMALPUR District- Munger
======================================================
1. Bimal Yadav, Son of Bikan Yadav, Resident of Village - Bakunia, P.S.-
Nawhatta (Darhar O.P.), District-Saharsa.
2. Amar Yadav, Son of Bikan Yadav Resident of Village - Bakunia, P.S.-
Nawhatta (Darhar O.P.), District-Saharsa.
... ... Appellant/s
Versus
The State of Bihar. ... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 84 of 2019
Arising Out of PS. Case No.-91 Year-2016 Thana- JAMALPUR District- Darbhanga
======================================================
Kamal Yadav, son of Bikan Yadav R/o village- Bakonia, P.S- Nawhatta
( Darhar O.P), District- Saharsa. ... ... Appellant/s
Versus
The State of Bihar. ... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 100 of 2019)
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
Mr. Shivam, Advocate
Mrs. Sushmita Mishra, Advocate
Dr. Rajesh Kumar Singh
For the Respondent/s : Mr. Abhimanyu Sharma, APP
(In CRIMINAL APPEAL (DB) No. 84 of 2019)
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
Mr. Shivam, Advocate
Mrs. Sushmita Mishra, Advocate
Dr. Rajesh Kumar Singh
For the Respondent/s : Mr.Ashwani Kumar Sinha, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
and
HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA)
Date : 10.04.2026
At the outset, it is important to mention that
both above named appeals are disposed herewith
through this common judgment, as same arises out of
Patna High Court CR. APP (DB) No.100 of 2019 dt.10-04-2026
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Sessions Trial Case No. 177 of 2017, arising out of
Jamalpur P.S. Case No. 91 of 2016 corresponding to
G.R. No. 987 of 2016.
2. The present appeal preferred by appellants
/convicts for final hearing against judgment of conviction
dated 19.12.2018 and order of sentence dated
21.12.2018 passed by the learned Additional Sessions
Judge-II, Benipur, Darbhanga in Sessions Trial Case No.
177 of 2017, arising out of Jamalpur P.S. Case No. 91
of 2016 corresponding to G.R. No. 987 of 2016,
whereby and whereunder appellants/convicts have been
convicted for the offences punishable under Section
302/34 of the Indian Penal Code (in short ‘IPC’) and
sentenced them to undergo rigorous imprisonment for
life with a fine of Rs. 25,000/-, in case of default of
payment of fine, they shall further undergo simple
imprisonment for one year.
3. The brief case of prosecution raised on
fardbeyan as recorded by A.S.I. Navendra Kumar Singh
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of Beta O.P., Darbhanga near to emergency ward of
doctor Anil Kumar of Darbhanga Medical College and
Hospital (in short ‘DMCH’) that his father namely,
Dashrath Yadav (deceased) was going on 27.12.2026 to
Darbhanga by taking tempo from Kirathpur Chowk. It
was stated that his father proceeded to another State
and as he reached 200 yards near to the Kirathpur
chowk, Vikash Yadav son of Babuan Yadav, Bimal Yadav
(appellant), Kamal Yadav (appellant) and Amar Yadav
(appellant) all sons of Bikan Yadav, Brajesh Yadav,
Gulshan Kumar Yadav, both sons of Bimal Yadav,
Mukesh Yadav, Rakesh Yadav, both son of Kamal Yadav,
residents of village Bakunia, P.S. Nawhatta, District-
Saharsa, who were hiding there prior to reaching of
tempo, came in front and stopped tempo and pulled his
father forcibly. All aforesaid persons who were equipped
with iron rod, lathi and rod started assaulting his father
and injured him badly, as a result of which he became
seriously injured. Upon public alarm, the nearby people
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and villagers when started coming towards place of
occurrence, seeing them, the aforesaid persons snatched
Rs. 5,000/- and mobile and fled away, whereafter by the
help of villagers and family members, he brought his
father first to Primary Health Centre, Kirathpur from
whereafter giving primary treatment, he was referred to
DMCH, where he was admitted to emergency ward of
Dr. Anil Kumar but during treatment, he died. It was
stated that his both legs and hands also got fractured.
4. The aforesaid fardbeyan was read over to
him, which he understood and found correct and,
thereafter, before his uncle and family members he put
his signature. The aforesaid fardbeyan was witnessed by
Sushil Kumar Yadav, Ram Naresh Yadav Nunulal Yadav
and Shrawan Yadav, who were examined during the trial.
5. On the basis of aforesaid fardbeyan, police
registered Jamalpur P.S. Case No. 91 of 2016 on
28.12.2016 for the offences punishable under Sections
341, 323, 325, 302, 379/34 of the Indian Penal Code.
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6. After completion of investigation, police
submitted charge-sheet No. 16 of 2017 on 31.03.2017
against three accused persons/appellants for the offences
under Sections 302/379/34 of the Indian Penal Code (In
short ‘IPC’).
7. Learned Jurisdictional Magistrate after taking
cognizance of the case and making compliance of
Section 207 of the Cr.P.C., committed the present case
to the Court of Session under Section 209 of the Cr.P.C.
for its trial and disposal.
8. To establish its case before the learned trial
court, the prosecution altogether examined in total of
eight witnesses, namely, PW-1 Bindu Sada, PW-2
Bahadur Sada, PW-3 Sushil Kumar Yadav, PW-4
Bishundev Yadav, PW-5 Raushan Yadav (Informant),
PW-6 Nunulal Yadav, PW-7 Dr. Ravi, PW-8 Digamber
Kumar (I.O. of this case).
9. The prosecution has also exhibited
following documents during the trial to substantiate its
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case which are as:-
Exhibit-1 - Fardbeyan
Exhibit–1/1 Signature of the informant over the
fardbeyan.
Exhibit-1/2 Signature of 04 witnesses over the
fardbeyan, namely Sushil Kumar Yadav (P.W-3),
Ram Naresh Yadav (not examined).
Exhibit-2: Inquest Report
Exhibit-2/1-:Signature of the witnesses, namely,
Raushan Kumar (PW-5) and Nunulal (PW-6) over
the Inquest Report.
Exhibit-3 Post Mortem Report
Exhibit-4 Formal FIR
10. After examination of the prosecution
witnesses and by taking note of evidences and
incriminating circumstances as surfaced during the trial,
the statement of appellants/accused persons were
recorded under Section 313 of the Cr.P.C., which was
denied in totality by showing complete innocence.
11. In support of defence, accused persons
examined in total of four witnesses, who has been
examined before the learned trial court as DW-1
Harikishan Yadav, DW-2 Brijlal Yadav, DW-3 Phulo
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Yadav, DW-4 Amiri Lal Yadav.
12. On the basis of aforesaid evidences as
surfaced during the trial, the learned trial court convicted
the appellants/convicts and passed order of sentences
accordingly, being aggrieved with, the present appellants
/convicts have preferred the present appeal.
13. Hence the present appeal.
14. Opening his argument, it is submitted by Mr.
Ajay Kumar Thakur, that the father of the informant died
due to injuries received out of accident of motor vehicle
(tempo) and due to inimical terms, the appellants were
implicated in the present case as two criminal cases and
one civil case is pending between them. It is submitted
by Mr. Thakur that the informant projected himself as an
eye-witness of the occurrence, however, at the time of
occurrence he was in Darbhanga in connection with his
studies. It is also pointed out that FIR lodged with delay
without any just explanation. It is also pointed out that
the other prosecution witnesses who are the immediate
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family members of deceased claimed themselves as an
eye-witness of the occurrence and their presence at
place of occurrence collectively is mere a chance in itself
which creates a doubt qua their testimony as eye-
witness of the occurrence. Particularly in view of fact
that when four members of the family including
informant was at place of occurrence, none of them
came forward to rescue the deceased.
15. It is further submitted by Mr. Thakur that
during trial only two independent witnesses were
examined i.e. PW-1 and PW-2. P.W. 1, categorically
stated in his examination-in-chief that he came to know
that father of the informant died due to road accident
whereafter he was declared hostile. PW-2 who is another
eye-witness of the occurrence, who also deposed through
his examination-in-chief that the father of the informant
died due to accident but was not declared hostile by the
prosecution and, therefore, a serious doubt qua entire
occurrence surfaced during the trial, which was
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completely overlooked by learned trial court while
recording the judgment of conviction.
16. While concluding the argument, it is
submitted by learned counsel that the deceased father of
the informant was a labour contractor, who usually
works outside the State and when he was going
alongwith other labours in tempo unfortunately the
accident took place, due to which he received serious
injuries and died during treatment in DMCH. It is
submitted that the doctor who has been examined as
PW-7, ascertained during his cross-examination that this
type of injuries are also possible in road accident.
17. In view of aforesaid, it is submitted that the
prosecution failed to established its case beyond all
reasonable doubt, the benefit of which must be extended
to appellants by setting aside the impugned judgment.
Mr. Thakur relied upon the legal report of Hon’ble
Supreme Court as available through Rajendra Singh
and others Vs. State of Uttaranchal Etc. reported as
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2025 SCC OnLine SC 2148, Punimati and Another
Vs. State of Chhattisgarh and Others reported as
2025 SCC OnLine SC 2866 and Goverdhan and
Another Vs State of Chhattisgarh reported as
(2025) 3 SCC 378.
18. Learned APP while opposing the appeal
submitted that though witnesses were present as a
matter of chance near to the place of occurrence but it is
not an impossible event, which could not be believed. It
is pointed out that admittedly parties were in inimical
terms and, therefore, out of said enmities, the present
occurrence took place. However, he could not dispute the
fact that PW-2 ascertained the occurrence as accident
and was not declared as hostile by the prosecution
during the trial.
19. Learned APP relied upon the legal report of
Hon’ble Supreme Court as available through Balraje v.
State of Maharashtra reported as (2010) 6 SCC
673, Dalip Singh v. State of Punjab, reported as
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(1953) 2 SCC 36, Masalti v. State of U.P., reported
as 1964 SCC OnLine SC 30 and Namdeo v. State of
Maharashtra, reported as (2007) 14 SCC 150.
20. It would be apposite to refer para No. 26
of the legal report of Hon’ble Supreme Court in the
matter of Rajendra Singh and others (supra), which
reads as under:-
“26. This Court, in several decisions, while
considering the evidentiary value of a chance
witness, has held that the deposition of a chance
witness whose presence at the place of incident is
doubtful should be discarded, or at least be
treated with great caution and close scrutiny.
Such a chance witness must adequately explain
his presence at the place of incident, which has
not been satisfactorily done in the instant case.”
21. It would be further apposite to refer para
No. 13 of the legal report of Hon’ble Supreme Court in
the matter of Punimati and Another (supra), which
reads as under:-
“13. It is a well-settled law that
merely because the witness is an interested or
related witness, his/her deposition cannot be
discarded. Further, deposition of such witnesses
is required to be scrutinized closely. As such, we
have closely scrutinized the deposition given by
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PW-4, who is the mother of the deceased. As
observed hereinabove, there are material
contradictions in her deposition regarding the
manner in which the incident took place and with
regard to which the information about the
incident was given by her granddaughter.”
22. It would be further apposite to refer para
Nos. 52 to 54 of the legal report of Hon’ble Supreme
Court in the matter of Goverdhan and Another
(supra), which reads as under:-
“52. It goes without saying that to be
an eyewitness, the witness must have been at the
place of occurrence or in the vicinity within the
range of visibility when the incident occurred.
53. If we critically examine the other
evidence on record, it cannot be said that Lata
Bai (PW 10) did not see the incident.
54. For this, we will first refer to the
evidence of Santosh (PW 6). Even though
Santosh (PW 6) had claimed during his court
testimony that he did not see who the assailants
were, yet, in the cross-examination he specifically
stated that it is true that the information of the
incident was given immediately by him to the
mother (PW 10) and father (PW 5) of Suraj.
Therefore, the presence of Lata Bai near the
place of occurrence cannot be doubted. It is to be
noted that in the site map of the place of
occurrence (Ext. P-16) it is mentioned that the
body of the victim was found very near about 21
ft on the lane opposite the house of the deceased.
Thus, it cannot be said that it was impossible on
her part to have witnessed the incident. PW 10 is
not a chance witness but a natural witness. She
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did not suddenly appear at the place of
occurrence where she was not expected to be
present.”
23. It would be apposite to refer para Nos. 29
and 30 of the legal report of Hon’ble Supreme Court in
the matter of Balraje v. State of Maharashtra,
(supra) which reads as under:-
“29. Law is fairly well settled that
even if acquittal is recorded in respect of the co-
accused on the ground that there were
exaggerations and embellishments, yet conviction
can be recorded if the evidence is found cogent,
credible and truthful in respect of another
accused. The mere fact that the witnesses were
related to the deceased cannot be a ground to
discard their evidence.
30. In law, testimony of an injured
witness is given importance. When the
eyewitnesses are stated to be interested and
inimically disposed towards the accused, it has to
be noted that it would not be proper to conclude
that they would shield the real culprit and rope in
innocent persons. The truth or otherwise of the
evidence has to be weighed pragmatically. The
court would be required to analyse the evidence
of related witnesses and those witnesses who are
inimically disposed towards the accused. But if
after careful analysis and scrutiny of their
evidence, the version given by the witnesses
appears to be clear, cogent and credible, there is
no reason to discard the same. Conviction can be
made on the basis of such evidence.”
24. It would be apposite to refer para No. 24
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of the legal report of Hon’ble Supreme Court in the
matter of Dalip Singh (supra) which reads as under:-
24. A witness is normally to be
considered independent unless he or she springs
from sources which are likely to be tainted and
that usually means unless the witness has cause,
such as enmity against the accused, to wish to
implicate him falsely. Ordinarily, a close relative
would be the last to screen the real culprit and
falsely implicate an innocent person. It is true,
when feelings run high and there is personal
cause for enmity, that there is a tendency to drag
in an innocent person against whom a witness has
a grudge along with the guilty, but foundation
must be laid for such a criticism and the mere
fact of relationship far from being a foundation is
often a sure guarantee of truth. However, we are
not attempting any sweeping generalisation. Each
case must be judged on its own facts. Our
observations are only made to combat what is so
often put forward in cases before us as a general
rule of prudence. There is no such general rule.
Each case must be limited to and be governed by
its own facts.”
25. It would be apposite to refer para No. 14
of the legal report of Hon’ble Supreme Court in the
matter of Masalti (supra) which reads as under:-
“14. Mr Sawhney has then argued
that where witnesses giving evidence in a murder
trial like the present are shown to belong to the
faction of victims, their evidence should not be
accepted, because they are prove to involve
falsely members of the rival faction out of enmity
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and partisan feeling. There is no doubt that when
a criminal court has to appreciate evidence given
by witnesses who are partisan or interested, it
has to be very careful in weighing such evidence.
Whether or not there are discrepancies in the
evidence; whether or not evidence strikes the
court as genuine whether or not the story
disclosed by the evidence is probable, are all
matters which must be taken into account. But it
would, we think, be unreasonable to contend that
evidence given by witnesses should be discarded
only on the ground that it is evidence of partisan
or interested witnesses. Often enough, where
factions prevail in villages and murders are
committed as a result of enmity between such
factions, criminal courts have to deal with
evidence of a partisan type. The mechanical
rejection of such evidence on the sole ground that
it is partisan would invariably lead to failure of
justice. No hard and fast rule can be laid down as
to how much evidence should be appreciated.
Judicial approach has to be cautions in dealing
with such evidence; but the plea that such
evidence should be rejected because it is partisan
cannot be accepted as correct.”
26. It would be apposite to refer para No. 38
of the legal report of Hon’ble Supreme Court in the
matter of Namdeo (supra) which reads as under:-
“38. From the above case law, it is
clear that a close relative cannot be characterised
as an “interested” witness. He is a “natural”
witness. His evidence, however, must be
scrutinised carefully. If on such scrutiny, his
evidence is found to be intrinsically reliable,
inherently probable and wholly trustworthy,
conviction can be based on the “sole” testimony
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of such witness. Close relationship of witness with
the deceased or victim is no ground to reject his
evidence. On the contrary, close relative of the
deceased would normally be most reluctant to
spare the real culprit and falsely implicate an
innocent one.”
27. We have perused the trial court records
carefully and gone through all the evidences available on
record and has also considered the rival submissions as
canvassed by the learned counsel appearing on behalf of
the parties.
28. As to re-appreciate the evidence, while
disposing the present appeal, it appears apposite to us to
discuss the evidences available on record with
aforementioned legal notes which are as under:-
29. PW-1 is Bindu Sada, who deposed during
trial that occurrence took place about 4:00 PM
somewhere before five months, he was busy with
irrigation of wheat field of the informant namely,
Raushan Yadav and heard the public alarm that some
accident took place, whereafter Dashrath Yadav
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(deceased) was taken to the hospital. He could not see
that who assaulted him. He was declared hostile by the
prosecution. He denied the suggestion that he made a
statement before the police that three persons equipped
with lathi, rod assaulted the father of the informant and
he died during his treatment. It was ascertained that he
is not the eye-witness of the occurrence but came to
know that the father of informant namely Dashrath
Yadav died due to road accident.
30. PW-2 is Bahadur Sada, who testified
during the trial through his examination-in-chief that at
the time of occurrence he was irrigating his wheat field
and was also planning to go outside but in meantime, he
came to know that contractor (deceased father of the
informant) met with an accident, he saw that three
persons were engaged to bring him on cot, namely, Ram
Yadav, Phul Yadav and Jyotish Yadav. Subsequently, he
said that four persons were engaged carrying the
injured, out of which one was unfamiliar to him. He also
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accompanied the injured till Kirathpur Hospital, from
where doctor referred the injured to DMCH for better
treatment and he came to know on the very next day
that contractor had died. It was stated that he made the
same statement before police. He was not declared
hostile by the prosecution. He had also identified the
accused persons.
30.1 Upon cross-examination, he stated that the
accident took place near to Partaha village and father of
the informant died due to injuries received in road
accident.
31. PW-3 is Sushil Kumar Yadav, who
claimed to be an eye-witness of the occurrence. It was
deposed by him that at the time of occurrence he was at
Kirathpur Chowk and after hearing public alarm, he came
to near north south embankment of Koshi and saw that
Bimal Yadav, Kamal Yadav, Amar Yadav, Vikash Yadav,
Mukesh Yadav, Rakesh Yadav, Gulshan Kumar, Brajesh
Kumar, in total of nine persons were assaulting Dashrath
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Yadav (deceased) by using lathi, danda and rod. It was
ascertained that Kamal Yadav penetrated rod in the neck
of Dashrath Yadav. It was also ascertained in his
examination-in-chief that after occurrence injured was
taken to Kirathpur Hospital, from where he was further
referred to DMCH for better treatment, where he died
after 20 minutes. It was also ascertained that informant
has given his fardbeyan before ASI/daroga in DMCH
before him and has also put his signature over there.
31.1 Upon cross-examination, he stated that
land dispute was pending between the parties and
Dashrath Yadav (deceased) was his cousin brother. It
was said that in total of 3-4 litigations are pending
between them i.e. with appellants/accused. All litigations
are said to be pending in the Civil Court, Saharsa. It was
said that Amar Yadav (appellant) lodged Nawhatta P.S.
Case No. 79/13 and 125/13 against them. It was also
stated that one Title Suit bearing No. 158/14 is also
pending in the Civil Court, Saharsa. It was also stated
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that his house is at the distance of about one and half
kilometers from Kirathpur Chowk and there is no direct
route to come to Kirathpur Chowk from his house as one
river is there, which is always filled with water in all
seasons and boat is the only source of convenience. It
was stated that Kirathpur market is at a distance of
about 100 meters from the place of occurrence. He could
not disclose that when he proceeded from his house. He
stated that he proceeded alone. He met with Bishundeo
Yadav while on the way and with Dashrath Yadav at
about 4:00 PM at place of occurrence. It was also
ascertained by him that Dashrath Yadav is a Contractor
and works in Gujarat by hiring labours from village. It is
categorically stated by him that at the time of occurrence
Dashrath Yadav was going outside alongwith his labours,
however, he could not disclose the name of labours. He
could not said the number of vehicle through which he
was going. He could not describe the injuries. It was
stated by him that Dashrath Yadav was given primary
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treatment at Kirathpur Hospital i.e. for about 5-10
minutes, whereafter was referred to DMCH where the
treatment was continued for 20-25 minutes and,
thereafter, he was referred to PMCH (Patna Medical
College and Hospital), where the treatment was
continued for 20-25 minutes. It was stated that except
Dashrath no one received treatment, this is the only
witness who stated that deceased was treated upto
Patna Medical College and Hospital, he denied the
suggestion that Dashrath Yadav died due to road
accident and false implication was raised due to previous
enmities.
32. PW-4 is Bishundeo Kumar Yadav, who
also claims to be an eye-witness of the occurrence. At
the time of occurrence he was at Chhilkora Chowk, which
is 200 yards away from the place of occurrence. After
hearing public cry he came to the place of occurrence
and saw that Vikash Yadav, Bimal Yadav, Kamal Yadav,
Amar Yadav, Brajesh Yadav, Mukesh Yadav, Gulshan
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Kumar and Rajesh Kumar were assaulting Dashrath
Yadav by using lathi, rod etc. The blood were oozing out
from the mouth and nose of Dashrath. When people
gathered over there, the accused persons fled away. It
was also ascertained by him that the injured Dashrath
Yadav was hospitalized in Kirathpur Hospital from where
he was referred to Darbhanga, where he died during
treatment.
32.1 Upon cross-examination, it was stated by
him that informant is his nephew. It also stated that in
total of 2-3 litigations are pending between them and
also ascertained that Amar Yadav (appellant) lodged
Nawhatta P.S. Case No. 125/13 and 79/13 against him.
It is also stated that a Title Suit is also pending between
them and parties are the agnates of each other. His
village was located between the two banks of Koshi and
Chhilkora Chowk which is about 2-3 kilometers away
from his village where one can only reach after crossing
two rivers through boat. It was also stated that the
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distance between Chhilkora and Kirathpur is one
kilometer. It was also ascertained by him that he alone
proceeded for Chhilkora from his house at 2:00 PM. It
was stated that the place of occurrence is about 200
yards in north from Kirathpur Chowk whereas the
Kirathpur hospital is about 300-400 yards away from
place of occurrence. It was said that the Kirathpur
Chowk is a busy public place. He saw total of 10-12
persons at the place of occurrence and found Bigan
Yadav, Bimal Yadav, Kamal Yadav, Amar Yadav, Brajesh
Yadav, Gulshan Yadav, Mukesh Yadav and Rakesh
Yadav. Upon further cross-examination, he stated that
Dashrath Yadav was doing service in Gujarat in one M/s
Alkem company. He came to village from Gujarat 10-15
days before. He could not disclose the name of labour
engaged by Dashrath Yadav. It was stated that the
deceased has three sons, namely, Raushan Kumar,
Vikash Kumar and Nandan Kumar and Raushan Kumar
(informant) study at Darbhanga and is a student of
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Matric (Class-Xth). He stated that the doctor referred
Dashrath Yadav immediately for DMCH and his
treatment was continued at Darbhanga throughout day
and night. He was present during treatment of Dashrath
Yadav. It was stated that the funeral rite took place on
28th or 29th day of December. It was also stated that
parties were fighting for 11 bighas of land, for which the
matter was pending in Civil Court, Saharsa. He denied
the suggestion that no such occurrence took place and
the father of the informant died in a road accident.
33. PW-5 is the informant, namely,
Raushan Kumar, it was deposed by him through his
examination-in-chief that the occurrence took place
about one year before and the time was about 4:00 PM.
He was accompanied with his father for Darbhanga and
was also on tempo and when he turned towards north
from Kirathpur Chowk, immediately thereafter the
accused persons Bimal Yadav, Amar Yadav, Kamal
Yadav, Brajesh Yadav, Mukesh Yadav, Rakesh Kumar,
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Gulshan Kumar and Vikash Yadav came there suddenly
equipped with lathi, rod etc. It was testified by him that
Kamal Yadav, penetrated rod in the neck of his father
and also caused injuries in his head. When people
gathered over there the accused persons fled away,
whereafter his father was brought to PHC, Kirathpur
from where the doctor referred him for DMCH, where his
treatment was continued for 10-20 minutes whereafter
he died. It was stated that his fardbeyan was recorded in
DMCH itself, which he identified and found correct during
the trial and upon his identification it was exhibited as
Exhibit-1/1. He also identified his signature on inquest
report, which upon his identification was exhibited as
Exhibit No. 2.
33.1 Upon cross-examination, it was stated by
him that witnesses Sushil Yadav (PW-3), Bishundev
Yadav (PW-4), and Nunulal Yadav (PW-6), all are his
uncle. He could not state that how many cases are
pending between the parties. It was stated that he
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passed his class 10th examination in year 2014 and he is
the student of ML Academy of Darbhanga. It was
deposed that he is residing in Darbhanga since last three
years. It was also deposed that Mukesh Yadav, Brajesh
Yadav, Gulshan Yadav are also residing at Darbhanga.
Upon further cross-examination, it was stated by him
that between his village and Kirathpur, there is a stream
of Koshi river, which remains full of water in all seasons
and can be crossed only by using boat. It took at least
half an hour usually from his village to reach Kirathpur.
It was stated by him that his father works in Gujarat as
a Contractor for a company. He also stated that he was
a labour contractor and he usually engage labour of
nearby 4-5 villages for his work in Gujarat. He could not
state the registration number of tempo but stated that it
was of blue colour. He was sitting in front of the tempo
next to the driver. There was plenty of blood at place of
occurrence. The clothes of his father was also stained
with blood. After 10-15 minutes of occurrence his father
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was taken to Kirathpur Hospital for treatment. It was
stated that whether he was treated in OPD or not can be
said by only his uncle. The treatment at Kirathpur was
continued only for 2-4 minutes whereafter his father was
referred to DMCH where treatment was continued for 20
minutes and, thereafter, he died. He informed police on
next day of the occurrence i.e. on 28 th at DMCH itself.
He was aware about Jamalpur police station which is in
Kirathpur, where occurrence took place. He could not
state that which accused were equipped with which type
of weapons. Police recorded his statement at place of
occurrence after 3-4 days of the occurrence. He denied
that his father died in road accident and due to previous
enmities, implicated accused persons.
34. PW-6 is the Nunulal Yadav, who also
claimed as an eye-witness of the occurrences and
deposed through his examination-in-chief that on
27.12.16 at about 4:00 PM, he was at Kirathpur Chowk.
He was informed by unknown person that his brother is
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assaulted by Kamal Yadav, Bimal Yadav, Amar Yadav,
Brajesh Yadav, Gulshan Yadav, Rakesh Yadav, Mukesh
Yadav, Dukhan Yadav, whereafter he went there and
found accused persons assaulting his brother by using
danda and rod and due to said assault both legs and
hands become fractured. Kamal Yadav penetrated rod in
neck, resulting profused bleeding from nose and mouth
of Dashrath Yadav. It was specifically deposed that
Kamal Yadav snatched Rs. 5000/- and one mobile of his
brother. He also deposed that after receiving treatment
for some time, his brother was referred to DMCH, where
he died after 20-25 minutes during course of his
treatment. He testified that the informant has given his
fardbeyan before police in his presence and has also put
his signature thereof, which upon his identification was
exhibited as Exhibit No. 1/2. He also testified the
inquest report of his deceased brother Dashrath Yadav
which was prepared in his presence. He identified his
signature before the court and over inquest, which upon
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his identification was exhibited as Exhibit No. 2/1.
34.1 Upon cross-examination, it was stated
that Sushil Yadav and Bishundeo Yadav are his brothers.
He also stated that accused were in inimical terms since
last 2-3 years. He also ascertained land dispute between
the parties. He could not ascertained that Amar Yadav
lodged Nawhatta P.S. Case No. 79/13 and 125/13
against him. The Title Suit was filed by him. It was
stated that parties are agnates of each other. He
proceeded for Kirathpur market from his home at 2:00
P.M. He purchased clothes from the shop but could not
disclose the name of shop keeper. He met with several
persons in between but could not disclose the name of
anyone. He could not disclose the name of any of the
shop keeper of the Kirathpur market. It was stated that
his deceased brother was a labour contractor in Gujarat.
It was stated that when he reached at place of
occurrence, 10-15 persons were already present there.
He identified only 9-10 persons, who are Raushan
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Kumar, Sushil Kumar, Bimal Yadav etc. It was stated
that Kamal Yadav was equipped with rod and rest of the
accused persons were equipped with lathi. He tried to
save his brother but by that time, nearby persons arrived
there, as a result the accused persons fled away. He
does not received any injuries during the occurrence, as
he was at the distance of 3-4 laggas. The accused
persons were assaulting Dashrath Yadav indiscriminately
by lathi, therefore, he could not stated that who
assaulted how many times by lathi to deceased. He
found blood at place of occurrence. He could not explain
that in which ward of Kirathpur hospital the treatment
was given to the deceased and stated that Sushil Kumar
and Shrawan Yadav were present over there. He could
not state that who informed police first. He denied the
suggestion that Dashrath Yadav died in road accident
and taking benefit of that the applicants were falsely
implicated with this case.
35. PW-7 is Dr. Ravi, who was posted as
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Tutor in department of FMT, D.M.C.H, Darbhanga. On
28.12.2016, he examined deceased Dashrath Yadav,
Son of Sital Yadav, Village- Bakunia, P.S. Nawhatta,
Distt. Saharsa and found following injuries on his
person:-
1. Body and body clot were socked with blood
and blood clots bandages socked with blood and blood
clots were found over different part of the body. Blood
and Blood clots found over both nostrils and both ears.
Abrasion measuring 3'x1/2' is found over right side of
forehead. 31/2"x1/2" was found over right side of neck
on lateral aspects.
3- Lacerated wound measuring 3"x1/2"x1/8'
was found over it paritatiouperoual region of the head.
I- 5x 1/4"x Muscle deep was found middle of
the left leg on lateral aspects.
II-2 1/2"x1/4" x muscle deep was found over
medial aspects of right thigh in the middle
III-3 1/2"x1/2"x1/8"was found over left arm
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lateral aspects.
These wounds were infiltrated with blood and
blood clots. There was closed fracture of saft of right
humerus in the middle. There was closed fractured shaft
of fimmer in the middle and left tibia and fibia in the
middle.
4. On dissection of scalp underlines of tissues
and muscles where grossly lacerated and infiltrated with
blood and blood clots in left parietal temporal region of
head. On removal of soft tissues and muscle and
cleansing the area there was linear fracture 3' in length
in left periotal bone. On removal of scalp cap there was
extra dural and sub dural haematomous were present in
both hemisphere of brain. Right side of heart was filled
with blood and left was found empty. Both lungs, liver,
splin and both kidneys were pale. Stomach and urinary
bladder was found empty.
5- Opinion- Above noted injuries were ante-
mortem and dangerous to life in ordinary course of
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nature. These were caused by Hard and blunt object/s
consisted with Police inquest. Death was due to intro-
cranial hemorrhage, compression and shock. Time since
death was within 12-18 hours from the time of P.M
examination in the deptt. This report was with my pen
and bears my signature and seal of the deptt. Mark as
ext.-3.
35.1 Upon cross-examination, it was deposed
by him that during autopsy he found bandage over the
wound. He found total of four wounds from which the
blood was oozing. Injury no. 2 was on neck, which was
superficial. Injury no. 1 was on head, which was also
superficial. It was categorically stated that this type of
injury is possible in accident. It is stated that only cause
of death is required to be mentioned in postmortem not
the time of injury. It was also stated that all injuries
were found to be caused by using blunt weapons. One
fractured in right leg and one fractured in left leg were
found upon.
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36. PW-8 is Digambar Kumar, who is
Investigating Officer of this case, who was posted as
SHO in Jamalpur police station on 20.12.2016 and
registered the present case as Jamalpur P.S. Case No.
91/16. He identified his signature and also the
handwriting of formal FIR, which upon his identification
was exhibited as Exhibit No. 4. He visited place of
occurrence and prepared a map and after obtaining
criminal antecedent report, Call Details Record of
accused persons, Consumer Application Forms (In short
‘CAF’) obtained during investigation and as per the
direction of his superior authority, submitted charge-
sheet against accused/appellants for the offences
punishable under Sections 302, 379/34.
36.1 Upon cross-examination, it was stated by
him that Bindeshwar Sada and Bahadur Sada (PW-2) are
independent witnesses, whereas the witness Sushil
Kumar Yadav (PW-3), Bishnudeo Yadav (PW-4) and
Nunulal Yadav (PW-6) are the family members of the
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deceased. He could not collect any mark regarding
occurrence from the place of occurrence. He could not
found blood. No one received injuries except deceased.
He only received postmortem report and stated that no
injury report was received by him. The postmortem
report is not mentioning with police case number as by
that time no FIR was lodged. It was stated that in FIR,
no specific allegation is available against any of the
accused persons. It is stated that the fardbeyan suggest
that both hand and leg of deceased were fractured. He
stated that witnesses supported the pending criminal
litigation and title suit. It was also stated that mobile
number 7292930937 which was said to be snatched by
the informant from his father during the occurrence was
found registered in the name of Prakash Mukhiya son of
Ramu Mukhiya of village Punhad, District- Darbhanga. At
the time of occurrence this mobile was in village
Pardaha, police station -Nawhatta, District- Saharsa,
which was two kilometer away from place of occurrence.
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He denied the suggestion that Dashrath Yadav died in
accident and also in want of proper treatment.
37. Record also suggest that in total of four
witnesses were examined in defence. All of them
supported the fact that they came to know that deceased
Dashrath Yadav was going to Garole Chowk from
Partaha and due to turning of his tempo he received
injuries, due to which he died during his treatment. None
of them appears to be an eye-witness of the occurrence.
DW-3 stated through his examination-in-chief that after
accident Dashrath Yadav was brought to his home and
he went there to see him, whereafter he was taken to
hospital and he has also accompanied them up to village
border.
Our Findings
38. The first and foremost issues, which seems
to us is to whether the PW-3 Sushil Kumar Yadav, PW-4
Bishundev Yadav and PW-6 Nunulal Yadav are wholly
reliable witnesses or not as they are family members of
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deceased and ascertained their presence at place of
occurrence as a matter of ‘chance’, in the background of
previous enmities arising out of land dispute.
39. It appears from the testimony of PW-3 that
the appellant Kamal Yadav penetrated rod in the neck of
Dashrath Yadav, the deceased. He ascertained that at
the time of occurrence he was at Kirathpur Chowk. He
also testified that he met with Dashrath Yadav at about
4:00 PM at place of occurrence and when the occurrence
took place he was going with labours further stepping
ahead it was said by him in his cross-examination that
deceased Dashrath Yadav was referred to PMCH, where
his treatment was continued for 20-25 minutes. No any
witness including the informant testified that for any
point of time the deceased was referred to PMCH in
connection with his statement. The aforesaid testimony
of PW-3 is in contrary to the statement of PW-4, PW-5
(informant) and PW-6 that the deceased died in the
emergency ward of DMCH, creates a serious doubt qua
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his presence at place of occurrence.
40. PW-4, who also claimed to be an eye-
witness of the occurrence and ascertained that at the
time of occurrence he was at Chhilkora Chowk, which is
about 200 yards away in north of place of occurrence.
He ascertained that the deceased was assaulted by
accused appellants and other accused persons but
nowhere ascertained that Kamal Yadav caused
penetrative wound to the neck of deceased, rather he
stated that the blood was oozing out from the mouth of
the deceased. He also ascertained that the deceased was
going with labours to Gujarat, where he was working as
a labour contractor. He stated contrary to the deposition
of PW-3, PW-5 (informant) and PW-6 that the treatment
of the deceased was undergoing the whole night,
contrary to the statement that it was continued for about
20-25 minutes. Similarly, PW-6 who is Nunulal Yadav,
who is brother of the deceased also said to be present at
Kirathpur Chowk at the time of occurrence as he went
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there to purchase some goods. He stated that during the
occurrence both legs and hands of his brother got
fractured contrary to medical finding, all these three
witnesses, who claimed themselves to be an eye-witness
of the occurrence appears to be present near the place
of occurrence as a matter of chance. It was also stated
by all witnesses that only through boat they can arrive
the place of occurrence from their home. They are
immediate family members and their contradictions qua
treatment and manner of assault as discussed aforesaid
cannot be accepted as minor contradictions. All these
three chance witnesses who are the family members
categorically stated that the two criminal cases were
lodged by appellant’s side against them by appellant
Amar Yadav, which is as Nawhatta P.S. Case No. 125/13
and 79/13 whereas the informant’s side lodged a Title
Suit for dispute of 11 bighas of land, which is pending in
Civil Court, Saharsa as Title Suit No. 158/14. It
transpires from the deposition of PW-3, PW-4 and PW-6
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that place of occurrence is a “Chowk” and a busy public
place but no independent witness were examined except
PW-2, who testified qua occurrence as a road accident.
41. In view of aforesaid, we are of the
considered opinion that these three witnesses are
interested witness in the outcome of the trial seeking to
secure the conviction. Their testimony, qua crime in
question also appears inconsistent on material aspects,
as discussed above. The presence of all three immediate
family members at or near to the place of occurrence
also creates a doubt, for the reason that despite the
presence of four immediate family members including
informant at the place of occurrence, no efforts was
made by any of them individually or collectively to save
the deceased. Hence, we are convinced enough that their
testimony are not “wholly reliable” being those of
interested witness. Furthermore, their presence at place
of occurrence does not appear to have been adequately
explained to us.
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42. Now coming to the testimony of PW-5, who
is the informant of this case. It transpires that he is the
person whose ‘fardbeyan’ forms the basis of the FIR. He
is the son of the deceased, aged about 18 years. He
recorded his statement in emergency ward of DMCH. He
also projected himself as an eye-witness to the
occurrence and as per FIR made an impression that he
was with his father in the tempo. He nowhere stated in
his fardbeyan that Kamal Yadav inflicted an injury on the
neck of his father, rather he did not even name the
person who took Rs. 5000/- and the mobile from his
father’s pocket. He not even stated while recording FIR
that he was with his father in tempo but while deposing
before the court as PW-5, he stated that he was with his
father in tempo and sitting on front seat next to the
driver but during the trial as PW-5 he stated that Kamal
Yadav struck his father on the neck with a rod. He failed
to testify that any cash or mobile was looted from his
pocket during the occurrence. He also stated that his
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father was working as a labour contractor in Gujarat
though he identified the colour of tempo as blue but
failed to say anything about its registration number. He
said that after 10-15 minutes of the occurrence his
father was taken to Kirathpur Government Hospital but
he could not state whether he was treated in OPD or not,
which makes his presence at Kirathpur Hospital doubtful.
He also stated that he informed the police from DMCH
on next very day i.e. on 28th of December 2016. Though
it transpires from his testimony that Jamalpur police
station was just one and half kilometer ahead to the
place of occurrence. He could not even have stated that
which person were equipped with lathi and which were
equipped with rod, this testimony creates a doubt qua
his testimony that Kamal yadav has inflicted an injury on
the neck of his father, and such his testimony being of
interested witness also not appears “wholly reliable”.
43. PW-7, conducted autopsy upon the dead
body of the deceased, namely Dashrath Yadav, found
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only six injuries, where the first one was measuring
3’x1/2’on the right side of forehead and 3’1/2x1/2’ was
found over right side of the neck. Lacerated wound
measuring 3’x1/2x1/8’ was found on parietal temporal
region of the head and thereafter, one muscle deep
injury was found on middle of the left leg and another
was on medial aspects of the right thigh and last one
was found over left arm lateral aspects. None of the
wound was found of penetrating in nature. The injury on
neck and forehead were superficial in nature and it was
also ascertained by him that this type of injuries are
possible in accident. The cause of death was ascertained
as intra-cranial hemorrhage, compression and shock.
The contradictions of medical evidence also creates a
doubt qua presence of PW-5 (informant) with his father
during the occurrence. His improvement over the
occurrence also creates a doubt. PW-2 categorically
stated that he saw the deceased carried by four persons
in injured condition on cot and came to know that he
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received injuries due to road accident. This witness was
also not declared hostile by the prosecution, creating a
big question mark to the entire occurrence. His
testimony was accepted by the prosecution who is also
an independent witness examined during trial.
44. In view of aforesaid, we are of the
considered opinion that the prosecution failed to
established its case beyond all reasonable doubt during
the trial, the benefit of which must be extended to all
above named appellants/accused.
45. Accordingly, all above-mentioned appellants
are acquitted from the charges levelled against them, by
giving benefit of doubt.
46. Hence, appeal stands allowed.
47. Accordingly, the impugned judgment dated
19.12.2018 and 21.12.2018 respectively passed by
learned Additional Sessions Judge-II, Benipur,
Darbhanga in Sessions Trial Case No. 177 of 2017,
arising out of Jamalpur P.S. Case No. 91 of 2016
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corresponding to G.R. No. 987 of 2016 is hereby set
aside.
48. Appellants namely, Bimal Yadav, Amar
Yadav and Kamal Yadav are in custody in connection
with this case, they are directed to be released forthwith,
if not required in any other case. Fine if any paid, be
returned to appellants forthwith.
49. Office is directed to send back the trial
court records along with a copy of this judgment to the
trial court, without delay.
( Chandra Shekhar Jha, J.)
Bibek Chaudhuri, J:- I agree.
(Bibek Chaudhuri, J.)
veena/-
AFR/NAFR AFR
CAV DATE 30.03.2026
Uploading Date 10.04.2026
Transmission Date 10.04.2026
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