Patna High Court
Mithilesh Kumar MadhukarversusThe State of Bihar
- Decided
- Disposal
- DISMISSED
Holding
The appeal is dismissed and the acquittal of the respondents is affirmed.
Summary
The appeal challenges the acquittal of Vijay Kumar Singh (Munna) and Puja Devi in a murder case arising from a 2018 incident in Mashrak, Saran, where the deceased Vishwanath Prasad was allegedly shot. The trial court had acquitted the accused on the ground that the prosecution's evidence – chiefly three eye‑witnesses who were relatives of the deceased, a post‑mortem report, and the absence of any forensic material such as the recovered bullet – was inconsistent and unreliable, and that the FIR was lodged thirteen hours after the incident without satisfactory explanation. The appellant argued that the eye‑witness testimony should have been given credence and that a delay in filing the FIR alone should not defeat the prosecution. The High Court examined the contradictions in the witnesses' statements, the lack of crime‑scene evidence, the failure of the investigating officer to record any blood or cartridge, and the Supreme Court precedents on FIR delay. It concluded that the prosecution witnesses could not be deemed wholly reliable and that the trial court’s appreciation of evidence was not perverse. Consequently, the appeal was dismissed and the acquittal upheld.
Issues considered
- The reliability and consistency of the prosecution's eye‑witness testimony
- The effect of a thirteen‑hour delay in lodging the FIR on the prosecution case
- Whether the absence of forensic evidence (bullet, cartridge, blood) defeats the charge of murder
- The existence of a conspiracy under Sections 120B and 34 IPC
- The scope of appellate review of a trial court's factual findings
Legislation cited
- Arms Act — s. 27
- Code of Criminal Procedure, 1973 — s. 157, 159, 174, 313
- Indian Penal Code — s. 120, 302, 34
Subjects
- murder
- conspiracy
- delay in FIR
- acquittal
- evidentiary reliability
- IPC 302
- IPC 120B
- Arms Act
- appellate review
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.392 of 2024
Arising Out of PS. Case No.-95 Year-2018 Thana- MASHRAK District- Saran
======================================================
Mithilesh Kumar Madhukar S/o Late Vishwanath Prasad @ Vishwanath
Singh R/o Village- Bahrauli, P.O.- Bahrauli, P.S. Mashrakh, District- Saran
... ... Appellant
Versus
1. The State of Bihar
2. Vijay Kumar Singh @ Vijay Kumar @ Munna S/o Shambhu Prasad R/o
Village- Bahrauli, Kuer Tola, P.S.- Mashrakh, District- Saran
3. Puja Devi @ Puja Prabhakar D/o Shambhu Prasad R/o Village- Bahrauli,
Kuer Tola, P.S.- Mashrakh, District- Saran
... ... Respondents
======================================================
Appearance :
For the Appellant : Mr. Rakesh Kumar Sharma, Advocate
: Mr. Saptashwa Singh, Advocate
: Mr. S.M. Sudhanshu, Advocate
For the State : Mr. Ajay Mishra, APP
For Resp. No. 2&3 : Mr. Udai Shankar Singh, Advocate
Mr. Jivitesh Kumar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE JUSTICE SMT. SONI SHRIVASTAVA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date: 15-04-2026
I.A. No. 01 of 2024
This application has been filed seeking condonation of
delay of 60 days in filing the present appeal.
2. Reasons have been shown in paragraph no.4 of the
application wherein it is stated that due to Durga Puja holidays,
the appellant could not obtain the certified copy of the judgment
for the purpose of filing this appeal.
Patna High Court CR. APP (DB) No.392 of 2024 dt.15-04-2026
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3. Taking note of the reasons shown and there being no
opposition to the application for condonation of delay, we
condone the delay in filing of the appeal.
4. I.A. No. 01 of 2024 is allowed.
Re: Cr. Appeal (DB) No. 392 of 2024
5. Heard learned counsel for the appellant, learned
Additional Public Prosecutor for the State and learned counsel for
the respondent nos. 2 and 3.
6. The present appeal arises out of the judgment of
acquittal dated 18.10.2023 (hereinafter referred to as the
'impugned judgment'), passed by the learned Additional Sessions
Judge-IV, Saran at Chapra (hereinafter referred to as ‘the learned
Trial Court’) in Sessions Trial No. 117 of 2020, arising out of
Mashrak P.S. Case No. 95 of 2018 dated 06.04.2018, whereby and
whereunder the respondent nos. 2 and 3 have been acquitted of the
charges levelled against them under Sections 302 and 120B of
Indian Penal Code (hereinafter referred to as ‘IPC’).
Prosecution Case
7. The prosecution case is based on a written
information furnished by one Jai Kishore Prasad (PW-3)
submitted to the Officer-in-charge, Mashrak Police Station, Saran
on 06.04.2018 at 19:00 hours. In his written information (Exhibit
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‘P/1’), the informant alleged that his younger brother, namely
Vishwanath Prasad @ Bittu is the Headmaster in Middle School,
Nanoli under PS Mashrak. On 06.04.2018 at about 6:00 p.m. as
usual he left home for school on his motorcycle. The informant
stated that he along with his son was on one motorcycle and
Mithilesh Kumar Madhukar son of Vishwanath Prasad was on
another motorcycle. Both were behind the motorcycle of
Vishwanath Prasad at some short distance. As soon as Vishwanath
Prasad reached South to Dumduma Pul and North to Khajuri
Brahmsthan, from the front three persons, namely Shambhu
Prasad, Vijay Kumar and Ajay Kumar, riding on one motorcycle
intercepted the motorcycle of Vishwanath Prasad and Vijay Kumar
@ Munna having pistol in his hand started abusing him. Ajay
Kumar then ordered to shoot him. On which Vijay Kumar @
Munna fired shot on the head of Vishwanath Prasad from behind.
Thereafter, Shambhu Prasad fired shot on his back, due to which
he fell down, the informant's side and some passersby tried to
catch hold of them, then the accused persons started firing in air
and fled away in North direction. The informant alleged that due
to old enmity, Amit Kumar @ Sanjay Kumar has committed
assault to his elder and threatened to kill him. The informant
alleged criminal conspiracy by Pooja Devi and daughter of
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Sambhu Prasad, Vijay Kumar @ Munna, his wife Chanda Devi,
Sanjay Kumar @ Amit Kumar and his wife.
8. On the basis of the aforesaid written information,
Mashrak P.S. Case No. 95 of 2018 dated 06.04.2018 was
registered under Sections 302, 120(B)/34 IPC and Section 27 of
the Arms Act against accused persons, namely, (1) Shambhu
Prasad, (2) Vijay Kumar @ Munna, (3) Ajay Kumar, (4) Amit
Kumar @ Sanjay Kumar, (5) Pooja Devi, (6) wife of Shambu
Prasad, (7) Chanda Devi wife of Vijay Kumar @ Munna, (8) wife
of Sanjay Kumar @ Amit Kumar and (9) wife of Ajay Kumar.
9. Upon completion of the investigation, the police
submitted a charge-sheet bearing Charge-sheet No. 217/2018
dated 30.06.2018, against (1) Vijay Kumar Singh @ Munna
(respondent no. 2) and (2) Pooja Prabhakar @ Pooja Devi
(respondent no. 3) under Section 302 and 120(B)/34 of the IPC
and Section 27 of the Arms Act keeping the investigation pending
against other accused persons. The learned Magistrate vide order
dated 14.09.2018 took cognizance of the offences under Section
302, 120(B)/34 of IPC and Section 27 of the Arms Act. After
supply of the police papers, on finding that the charge under
Section 302 of IPC was triable by the Court of Sessions, the
learned Magistrate committed the records to the Court of Sessions.
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In the Court of Sessions, charges were explained to (1) Vijay
Kumar Singh @ Munna (respondent no. 2) and (2) Pooja
Prabhakar @ Pooja Devi (respondent no. 3) who denied the
charges and claimed to be tried. Accordingly, vide order dated
04.03.2024, charges were framed under Sections 302/34,
120(B)/34 IPC and Section 27 of the Arms Act.
10. In course of trial, on behalf of prosecution
altogether five witnesses were produced and several documents
were exhibited which were marked as Exhibit ‘P/1’ to Exhibit
‘P/10’. On behalf of defence two witnesses were examined and
several documents were produced which were marked as Exhibit
D-1 to D-16. The description of the prosecution and defence
witnesses and the list of documents exhibited on their behalf are
being produced hereunder for a ready reference in a tabular form:-
List of Prosecution Witnesses
Prosecution Name of witness Description
Witness No.
PW-1 Babloo Kumar Eye witness
(Informant’s son &
nephew of the deceased)
PW-2 Mithilesh Kumar Eye witness
Madhukar
(son of the deceased)
PW-3 Jaikishor Prasad Eye witness
(Brother of deceased)
PW-4 Dr. Ravi Shankar Singh Doctor who
conducted post-
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mortem of the
deceased
PW-5 Ajay Kumar Paswan I.O of the case
List of Exhibits on behalf of Prosecution
Exhibit No. Description of Proved
the Exhibit by/Attested by
Exhibit ‘P-1’ Written petition PW-3
to P.S.
Exhibit ‘P-2’ Signature of PW-3
informant on the
written petition
Exhibit ‘P-3’ Postmortem PW-4
report
Exhibit ‘P-4’ Endorsement on PW-5
the written
petition
Exhibit ‘P-5’ Inquest report PW-5
Exhibit ‘P-6’ Formal charge- PW-5
sheet
Exhibit ‘P-7’ C.C. of formal
F.I.R of
Mashrakh P.S.-
315/2015
Exhibit ‘P-8’ C.C. of charge-
sheet of
Mashrakh P.S.-
315/2015
Exhibit ‘P-9’ C.C. of formal
F.I.R of
Mashrakh P.S.-
156/2017
Exhibit ‘P- C.C. of charge-
10’ sheet of
Mashrakh P.S.-
156/2017
List of Defence witnesses
Defence Name of Description
Witness No. witness
DW-1 Bhageshwar Co-villager of the
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Rai accused
DW-2 Brajkumar 2nd I.O. of this case
Singh
List of exhibits on behalf of defence
Exhibit Description of the Proved by/Attested by
No. Exhibit
Exhibit C.C. of formal FIR of
‘D-1’ Mashrakh P.S.- 315/15
Exhibit C.C. of charge-sheet of
‘D-2’ Mashrakh P.S-315/15
Exhibit C.C. Order Sheet T.S.-
‘D-3’ 269/14
Exhibit C.C. of plaint of T.S.-
‘D-4’ 269/14
Exhibit C.C. of written statement
‘D-5’ in T.S.- 269/14
Exhibit C.C. of written statement
‘D-6’ of Om Prakash
Prabhakar and Mithilesh
Kumar Madhukar
Exhibit C.C. of Power of
‘D-7’ Vishwanath Prasad in
T.S.- 269 of 14
Exhibit C.C. of Power of Om
‘D-8’ Prakash Prabhakar and
Mithilesh Kumar
Madhukar
Exhibit Order sheet dt. 27.07.18
‘D-9’ of LCR
Exhibit Order sheet dt. 06.08.18
‘D-10’ of LCR
Exhibit Remarks column in
‘D-11’ order sheet dt. 27.8.18 of
LCR
Exhibit C.C. of petition of
‘D-12’ accused dt. 04.07.2018
Exhibit Mobile tower location of
‘D-13’ Airtel with certificate
Exhibit Mobile tower location of
‘D-14’ Idea-Vodafone with
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certificate
Exhibit Reply under R.T.I. Act
‘D-15’ of SBI with envelop
Exhibit C.C. of deposition of
‘D-16’ Babloo Kumar in
Sessions Trial No.
157/22
11. Thereafter, the statements of Respondent nos. 2 and
3 were recorded under Section 313 CrPC. They pleaded
innocence and stated about false implication.
Findings of the Learned Trial court
12. The learned Trial Court examined the evidences
produced in course of trial. On a close scrutiny of the evidences
adduced on behalf of parties and upon taking into consideration
their respective submissions, the learned Trial Court found that out
of five witnesses produced on behalf of prosecution including the
Doctor and the Investigating Officer, the three witness are
witnesses of fact, who claimed to have seen the occurrence. They
are the brother, son and nephew of the deceased. Since, they were
the related witnesses and both the parties were admitting prior
enmity, the learned Trial Court took a view that the entire
prosecution evidence is required to be considered keeping in view
the attendant circumstances of the case.
13. The learned Trial Court observed that in such
circumstance, the evidence of other witnesses would gain
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importance. While analyzing the evidence of the Doctor, the
learned Trial Court found that according to the doctor, the rigor
mortis was present in all the four limbs. Lacerated wound of 1’’
diameter with charred and inverted margin over right side of
occipital region and a small metallic bullet was recovered after
dissecting scalp and handed over to the accompanying
chowkidar/constable. Another lacerated wound of ½’’ diameter
with charred and inverted margin over right side of back. All
abdominal and thoracic viscera were full of blood and clots.
Stomach contained undigested food material. All visceras were
intact and pale, both chambers of the heart were empty. Brain
paranchyma lacerated. The cause of death was shock and
hemorrhage and head injury caused by firearm due to these ante-
mortem injuries. The time since death to post-mortem examination
was 6 to 24 hours. The learned Trial Court has noticed the
submission of learned counsel for the defence and found that in
the present case, the deceased had left his house at 6:00 a.m. and
reached at the place of occurrence which is at a distance of about
5 kms and after the occurrence, he was taken to Mashrakh
Government Hospital where bandage was applied. Then, he was
referred to Patna and they started for Patna but the injured died on
the way near Dariyapur Block. They reached Dariyapur at about
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9:30 a.m. and the post-mortem was conducted at 12:05 p.m. on the
same day. The rigor mortis was present in all the limbs. The
learned Trial Court observed that as per medical jurisprudence, the
rigor mortis will spread all over the body in about 12:00 hours.
The other thing was the presence of undigested food material in
stomach. The deceased had not eaten anything in the morning, as
per evidence of PW-1 and PW-3 and therefore, in such situation,
there is no chance of presence of the undigested food in the
stomach of deceased at the time of his death. On both these
parameters, the learned Trial Court observed that if we go by the
statement of the doctor, the death took place between 12:00 p.m.
on 05.04.2018 and 6:00 a.m. on 06.04.2018. But the evidence of
Doctor is opinionative evidence which needs to be corroborated
by other evidences on the record.
14. Thereafter, the learned Trial Court has discussed
the evidence of Investigating Officer of the case, namely Sri. Ajay
Kumar Paswan (PW-5), who has stated that he got the information
of the occurrence at 7:00 PM. He did not write in the diary
whether any sign, cartridge, ‘khokha’, blood on soil or anything
which could be suggestive that any firing was done was there.
During investigation, he did not recover any katta, cartridge,
motorcycle. He did not enquire from anybody near the place of
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occurrence during the 10 months when he was the Investigating
Officer. He did not enquire about mobile location or tower
location of any accused and he did not enquire about the enmity
between the parties.
15. The learned Trial Court found that the I.O. had not
taken note of any sign of any occurrence at the place of
occurrence, though the witnesses said that the police had found
and collected khokha from the place of occurrence, but the I.O.
has specifically denied this. The one bullet was found in the body
of the deceased by the doctor during post-mortem, which was also
not produced by the prosecution even after specific order dated
19.10.2022 of the Court, rather a letter was sent to the Court
saying that there was neither any entry in Malkhana register of the
police station nor was it present in the Malkhana. The learned
Trial Court noticed that as per the doctor, the time of death is
before 6:00 a.m. but the witnesses have stated that the death of
deceased took place at 9:30 a.m.
16. As regards the evidence of the three witnesses of
fact, the learned Trial Court found that the witnesses have said
that they did not guard or follow the deceased everyday but on
the day of occurrence by chance they were going to see an
ailing relative through the same way and, thus, they were at the
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place of occurrence. This aspect was not investigated by the I.O.
whether any such relative was sick or any other reason for
presence of the witnesses there. The learned Trial Court noted
that the prosecution case as put forth is based on direct
evidence. The informant saw that three persons were standing
there with a motorcycle and when the deceased reached there,
they stopped him. Informant’s son saw that three persons on a
motorcycle were coming from opposite direction and deceased’s
son saw that three persons came on motorcycle from opposite
direction. About the manner of assault PW-1 said that on order
of Ajay Kumar, Vijay Singh shot the deceased in chest and
when he tried to flee, he shot at head and then Shambhu Singh
shot at his back as a result whereof, he fell down. PW-2 said
that on the order of Ajay Kumar, Vijay Kumar shot at his head
and Shambhu Prasad shot at his back, PW-3 said that on the
order of Ajay Kumar, Vijay Kumar shot in head of Vishwanath
Prasad and Shambhu Prasad shot in his back. The learned Trial
Court has noticed that as per their statements, PW-1, PW-2 and
PW-3 were so near that they could hear the accused talking that
Ajay Kumar said that it was he because of whom his sister’s life
was disturbed but despite this, these witnesses did not even try
to save the deceased. After that on hulla by witnesses, some
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passerby came and they took the injured in a Bolero to
Mashrakh Hospital where treatment was done and he was
referred to Patna and on the way, he died near Dariyapur Block
from where he was brought to Mashrakh. PW-2 did not give any
account after shooting in his examination-in-chief but in cross-
examination, he said that his father was taken to Mashrakh
Hospital in Bolero and bandage was done there and he was
referred to Patna and on the way, he stopped breathing near
Dariyapur where the doctor at Health Centre declared him dead
and they returned to Mashrak Police Station. PW-3 said that on
their hulla, some passerby came and they took the injured to
Government Health Center, Mashrakh where doctor put
bandage on the injuries and referred him to Patna. They went to
Patna with ‘Daroga Ji’ and on the way, he stopped breathing and
they took him to Dariyapur Health Center where doctor
declared him dead from where they came to Mashrakh Police
Station. The learned Trial Court wondered as to why the FIR
was not lodged even as the deceased’s son (PW-2), the
informant (PW-3) and deceased’s nephew (PW-1) were all
present there with the dead-body. The dead-body was sent for
post-mortem without even preparing inquest report.
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17. The learned Trial Court also found that in the oral
evidence, witnesses have stated that they first went to Mashrakh
Hospital, police had come but did not take statement of anyone.
PW-1 and PW-2 have stated in paragraph nos. 54 and 80 of their
deposition respectively that Darogaji accompanied them, when
they were going from Mashrakh to Patna. PW-3 has also stated
so in paragraph '67' of his deposition. The learned trial court
noticed that after death of deceased at Dariyapur, these
witnesses returned to Mashrakh Police Station and from there
the dead body was taken to Sadar Hospital, Chhapra. All this
were done during the period when the witnesses had come
across the police many times but neither FIR was lodged nor
inquest report was prepared. FIR was lodged on the basis of
written petition given by the informant at the police station after
about 13 hours of the occurrence and 7 hours of post-mortem.
This delay in lodging of the FIR has not been explained at all by
the prosecution and that would create doubt.
18. As regards the place of occurrence, the learned
Trial Court found that the I.O. had not recorded finding of any
blood or blood stained soil at the place of occurrence and this
would be casting doubt as to the actual place of occurrence. The
I.O. had also not recorded about any sign of cartridge, khokha at
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the place of occurrence and he had denied the claim of the eye-
witnesses that khokha was found and was taken to the police
station.
19. The learned Trial Court found that there were no
evidence at all of any conspiracy and the prosecution had failed
to prove any role of Puja Prabhakar except an utterance that the
occurrence took place under the conspiracy of all the accused
persons including Puja Prabhakar.
20. Having come to a conclusion that on the basis of
the whole materials on record and discussions, it would not be
safe to convict respondent no. 2 and 3, the learned Trial Court
acquitted them and discharged them from their bail bonds and
sureties.
Submission on behalf the Appellant
21. Mr. Rakesh Kumar Sharma, learned counsel for
the appellant has assailed the impugned judgment. It is
submitted that the learned Trial Court has not properly
appreciated the evidence of the prosecution witnesses.
22. Learned counsel further submits that the delay in
lodging of the FIR may alone cannot be a ground to throw away
the whole prosecution case. It is submitted that the three
prosecution witnesses are the eye-witnesses of the occurrence,
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however, the learned Trial Court has not believed their
testimony.
Submission on behalf of the Respondents
23. On the other hand, learned Additional Public
Prosecutor for the State as well as learned counsel for the
respondents nos. 2 and 3 submit that the learned Trial Court has
thoroughly examined the entire evidences available on the record
and has rightly concluded that the prosecution had failed to
establish the charges beyond all reasonable doubts.
24. Learned counsel for the respondents have drawn
the attention of this Court towards the statement of PW-1, who is
the nephew of the deceased. He has stated in paragraph '15' of his
deposition that police had taken his statement at Mashrak. He has
stated that his statement was taken at his home on 06.04.2018 in
the morning between 7:00-8:00 a.m. The police had prepared
some papers at his residence and had obtained his signature
thereon. He has also stated that when his statement was recorded,
at the same time, the statements of his brother, Mithilesh Kumar
and his father Jai Kishore Prasad were also taken. It is submitted
that this witness has made a statement that police had recorded his
statement on 06.04.2018 itself between 7:00-8:00 a.m., but the
prosecution has suppressed this statement of PW-1 and the present
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FIR has been lodged after 13 hours of the occurrence without
there being any plausible explanation for the delay.
25. Learned counsel further submits that the defence
has brought on record documentary evidences to demonstrate that
the deceased was defendant no.13 in Title Suit No.269/2014
(Niyamuddin Miya vs. Madan Miya) which was pending in the
Court of Sub-Judge-IInd, Chapra, Saran. In this regard, Exhibits
‘D/5’ and ‘D/6’ have been brought on record to demonstrate that
he was on litigating terms with respect to a property which he had
purchased at Bahrauli Bazar.
26. Learned counsel further points out from the
evidence of PW-2 (paragraph-70) that according to this witness,
he had gone to the police station directly from the place of
occurrence with his deceased father at around 6:30 a.m. It is,
therefore, submitted that according to PW-2, who claims to be an
eye-witness, he had gone to the police station directly from the
place of occurrence. It shows that the deceased father of PW-2 had
already died at the place of occurrence itself and, thereafter, they
had gone to the police station at 6:30 a.m. and still no FIR was
lodged. The contradictions writ large on the face of the statement
of PW-1 and PW-2 as to the recording of the statement by police.
One says that statement was recorded at home in Mashrak,
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whereas the another says that they had gone to the police station
directly from the place of occurrence.
27. Learned counsel submits that in a case of appeal
against acquittal, this Court being an Appellate Court, may not
interfere with the findings of the learned Trial Court which are so
reasoned and based on proper appreciation of the evidences on the
record.
Consideration
28. Having considered the rival submissions at the Bar
and on going through the evidences available on record, which we
have once again examined after hearing learned counsel at length,
we are of the considered opinion that in this case, the prosecution
witnesses, namely PW-1, PW-2 and PW-3 are highly inconsistent
to the extent of making contradictory statements against each
other. We have noticed the statement of PW-1 and PW-2
hereinabove as to how they have stated about recording of the
statement by police. We have also noticed that both the parties are
admitting enmity because of the matrimonial discord between the
son and the daughter-in-law of the deceased and that is the reason
why the prosecution suspected involvement of the wife of the son
of the deceased and her family members.
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29. We have further noticed that in this case, the I.O.
had not found any sign of occurrence, he had not recorded as to
the finding of any blood at the place of occurrence. He had also
not found any Khokha at the place of occurrence even as the
prosecution witnesses claimed so, but the I.O. has empathically
denied. The defence documents which are Exhibits ‘D-5’ and ‘D-
6’ are suggesting that the deceased was one of the defendants in a
property suit which was going on with respect of a property which
he had purchased at Bahrauli Bazar.
30. In this case, there is a delay of thirteen hours in
lodging of the FIR. The occurrence took place at about 6:00 am on
06.04.2018, whereas the police was informed on the same day at
19:00 hours and FIR has been registered at the given time. As
regards the delay in lodging of the FIR, the Hon’ble Supreme
Court has observed in paragraph '12' of the judgment in case of
Meharaj Singh (L/Nk.) vs. State of U.P. reported in (1994) 5
SCC 188 as under:-
“12. FIR in a criminal case and particularly in a
murder case is a vital and valuable piece of evidence
for the purpose of appreciating the evidence led at the
trial. The object of insisting upon prompt lodging of the
FIR is to obtain the earliest information regarding the
circumstance in which the crime was committed,
including the names of the actual culprits and the parts
played by them, the weapons, if any, used, as also the
names of the eyewitnesses, if any. Delay in lodging the
FIR often results in embellishment, which is a creature
of an afterthought. On account of delay, the FIR not
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only gets bereft of the advantage of spontaneity, danger
also creeps in of the introduction of a coloured version
or exaggerated story. With a view to determine
whether the FIR was lodged at the time it is alleged to
have been recorded, the courts generally look for
certain external checks. One of the checks is the receipt
of the copy of the FIR, called a special report in a
murder case, by the local Magistrate. If this report is
received by the Magistrate late it can give rise to an
inference that the FIR was not lodged at the time it is
alleged to have been recorded, unless, of course the
prosecution can offer a satisfactory explanation for the
delay in despatching or receipt of the copy of the FIR by
the local Magistrate. Prosecution has led no evidence at
all in this behalf. The second external check equally
important is the sending of the copy of the FIR along
with the dead body and its reference in the inquest
report. Even though the inquest report, prepared under
Section 174 CrPC, is aimed at serving a statutory
function, to lend credence to the prosecution case, the
details of the FIR and the gist of statements recorded
during inquest proceedings get reflected in the report.
The absence of those details is indicative of the fact that
the prosecution story was still in an embryo state and
had not been given any shape and that the FIR came to
be recorded later on after due deliberations and
consultations and was then ante-timed to give it the
colour of a promptly lodged FIR. In our opinion, on
account of the infirmities as noticed above, the FIR has
lost its value and authenticity and it appears to us that
the same has been ante-timed and had not been
recorded till the inquest proceedings were over at the
spot by PW-8.”
The same view has been reiterated by the Hon’ble Supreme
Court in the case of Chotkau vs. State of U.P. reported in (2023)
6 SCC 742. Paragraph ‘69’ of the judgment in the case of
Chotkau (supra) reads as under:-
“69. On the question of compliance of Section 157(1)
along with logical reasoning for doing so, the following
Patna High Court CR. APP (DB) No.392 of 2024 dt.15-04-2026
21/22
passage from the decision in Jafarudheen v. State of
Kerala8 may be usefully quoted as under : (SCC p. 462,
paras 28-29)”
“28. The jurisdictional Magistrate plays a
pivotal role during the investigation process. It
is meant to make the investigation just and fair.
The investigating officer is to keep the
Magistrate in the loop of his ongoing
investigation. The object is to avoid a possible
foul play. The Magistrate has a role to play
under Section 159CrPC.
29. The first information report in a criminal
case starts the process of investigation by
letting the criminal law into motion. It is
certainly a vital and valuable aspect of
evidence to corroborate the oral evidence.
Therefore, it is imperative that such an
information is expected to reach the
jurisdictional Magistrate at the earliest point of
time to avoid any possible ante-dating or ante-
timing leading to the insertion of materials
meant to convict the accused contrary to the
truth and on account of such a delay may also
not only get bereft of the advantage of
spontaneity, there is also a danger creeping in
by the introduction of a coloured version,
exaggerated account or concocted story as a
result of deliberation and consultation.
However, a mere delay by itself cannot be a
sole factor in rejecting the prosecution's case
arrived at after due investigation. Ultimately, it
is for the court concerned to take a call. Such a
view is expected to be taken after considering
the relevant materials.”
31. While it is true that the prosecution case cannot be
thrown away only on the ground of delay in lodging of the FIR,
when we examine this aspect of the matter together with the
8. (2022) 8 SCC 440 : (2022) 3 SCC (Cri) 436]
Patna High Court CR. APP (DB) No.392 of 2024 dt.15-04-2026
22/22
evidence of the prosecution witnesses, particularly, PW-1, PW-2
and PW-3, we are of the considered opinion that they cannot be
put in the category of wholly reliable witnesses. The appreciation
of the evidences by the learned Trial Court cannot be said to be
perverse. In such circumstance, being an Appellate Court, it would
not be appropriate for this Court to take a different view so as to
upturn the findings of the learned Trial Court.
32. We find no merit in the appeal. It is dismissed
accordingly.
33. Let a copy of the judgment together with the trial
court’s records be sent down to learned trial court.
(Rajeev Ranjan Prasad, J)
( Soni Shrivastava, J)
harsh/anand-
AFR/NAFR
CAV DATE
Uploading Date 19.04.2026
Transmission Date 19.04.2026
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