Patna High Court
Tital Yadav @ Title Yadav And Anr vs The State Of Bihar on 15 May, 2025
Author: Shailendra Singh
Bench: Mohit Kumar Shah, Shailendra Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.977 of 2017
Arising Out of PS. Case No.-156 Year-2003 Thana- SURYAGARHA District- Lakhisarai
======================================================
1. Mukesh Yadav, Son of Late Daso Yadav,
2. Jalandhar Yadav, Son of Darogi Yadav,
3. Bijay Yadav, Son of Late Baleshwar Yadav,
4. Ramgulam Yadav @ Gulo Yadav, Son of Late Harsahay Yadav, All Resident
of Village- Kharra, P.S.- Surajgarha, District- Lakhisarai.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 1184 of 2017
Arising Out of PS. Case No.-156 Year-2003 Thana- SURYAGARHA District- Lakhisarai
======================================================
1. Tital Yadav @ Title Yadav, Son of Darogi Yadav,
2. Nandan Yadav, Son of Late Balmiki Yadav, Both resident of Village- Kharra
P.S.- Surajgarha, District- Lakhisarai.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 977 of 2017)
For the Appellant/s : Mr. Rajendra Narayan, Sr. Advocate
Mr. Jitendra Narain Sinha, Advocate
Ms. Khusi Awadh, Advocate
For the State : Ms. Shashi Bala Verma, APP
For the Informant : Mr. Rahul Kumar Singh, Advocate
(In CRIMINAL APPEAL (DB) No. 1184 of 2017)
For the Appellant/s : Mr. Rajendra Narayan, Sr. Advocate
Mr. Jitendra Narain Sinha, Advocate
Ms. Khusi Awadh, Advocate
For the State : Ms. Shashi Bala Verma, APP
For the Informant : Mr. Rahul Kumar Singh, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
and
HONOURABLE MR. JUSTICE SHAILENDRA SINGH
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE SHAILENDRA SINGH)
Date : 15-05-2025
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Heard Mr. Rajendra Narayan, learned Senior Counsel
appearing for the appellants assisted by Mr. Jitendra Narain Sinha,
Advocate, Mr. Rahul Kumar Singh, learned counsel for the
informant and Ms. Shashi Bala Verma, learned APP for the State.
2. The Cr. APP (DB) No. 977 of 2017 has been filed by
the appellants namely, Mukesh Yadav, Jalandhar Yadav, Bijay
Yadav and Ramgulam Yadav @ Gulo Yadav (hereinafter referred
to as 'A-1, A-2, A-3 and A-4' respectively). The Cr. APP (DB) No.
1184 of 2017 has been filed by the appellants namely, Tital Yadav
@ Title Yadav and Nandan Yadav (hereinafter referred to as 'A-5
and A-6' respectively).
3. Both the above mentioned appeals have been
preferred against the common judgment of conviction and order of
sentence dated 29.07.2017 passed by the learned Fast Track Court-
2nd, Lakhisarai in Sessions Trial No. 336 of 2010/Trial No. 45 of
2017 arising out of Surajgarha P.S. Case No. 156 of 2003 whereby
and whereunder the appellants have been convicted for the offence
under Section 302 read with Section 34 of the Indian Penal Code
( in short 'IPC') and for the offence under Section 27 of the Arms
Act. The appellants have been sentenced to undergo rigorous
imprisonment for life alongwith a fine of Rs. 5,000/- each for the
offence under Section 302/34 of IPC and in default of payment of
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fine, they have been directed to undergo simple imprisonment for
one week. The appellants have also been sentenced to undergo
rigorous imprisonment for three years each for the offence under
Section 27 of the Arms Act. Both the sentences awarded upon each
of the appellants have been directed to run concurrently by the trial
court.
4. Here it is important to mention that one co-accused
namely, Binod Kumar Himanshu @ Binod Yadav faced trial
alongwith the appellants but he became absent on the date when
the impugned judgment was to be pronounced, so, his case was
separated by the trial court.
5. As both the appeals have been preferred against the
common judgment which is impugned herein, hence, these appeals
are being decided by a common judgment.
6. The appellants including the co-accused Binod Kumar
Himanshu @ Binod Yadav stood charged for the offences
punishable under Section 307 read with Section 34 and 302 read
with Section 34 of the IPC and also stood charged for the offence
under Section 27 of the Arms Act. These charges were read over
and explained to them in Hindi to which they pleaded not guilty
and claimed to be tried for the charged offences.
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7. The substance of the prosecution story appearing from
the fardbeyan (Ext.- 1/b) of the informant, Rai Sahab Yadav (PW-
3) is as follows:-
As per the informant, on 08.07.2003 at about 8:00 am he left
with his uncle namely, Tarni Yadav, the victim (hereinafter referred
to as 'deceased') to meet a carpenter namely, Asarfi Mistry, a
resident of Chanania village on their motorcycle. The motorcycle
was being driven by his uncle at that time and when they reached
at the house of Asarfi Mistry in Chanania village, he (Asarfi
Mistry) was not found at his home, then they waited for him for
sometime and finally started returning back to their village,
Kharra. When they were on the way and had reached near the shop
of one, Rajendra Shah, in Chanania village then he saw
Chandradeo Yadav, Binod Kumar Himanshu, Mukesh Yadav (A-
1), Ashok Yadav, Tital Yadav @ Title Yadav (A-5), Jalandhar
Yadav (A-2), Kamleshwari Yadav, Nandan Yadav (A-6), Janardan
Yadav, Udai Yadav, Bijay Yadav (A-3), Arun Yadav, Anil Yadav,
Sitaram Yadav, Gulo Yadav (A-4), Daso Yadav, Baleshwar Yadav,
Mahesh Yadav, Arbind Yadav, Upendra Yadav, all resident of
Chanania village (hereinafter referred to as 'accused'). They found
all the accused standing on the road and then they surrounded their
motorcycle and at that time, they were having pistol and sixer. The
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informant further stated in his fardbeyan that upon seeing the
accused armed with pistol and sixer, he became terrified and also
noticed the dangerous intention of the accused and then he jumped
from his motorcycle and rushed in a lane/street situated in front of
the place of occurrence and stood there at some distance from the
place of occurrence and in the meantime, the accused forcefully
got his uncle off the motorcycle and also caught him. Thereafter,
the accused Chandradeo Yadav and Sitaram Yadav asked the other
accused as to what they were seeing and they should kill him
(deceased) and then the accused, Binod Kumar Himanshu @
Binod Yadav, Tital Yadav @ Title Yadav (A-5), Nandan Yadav (A-
6), Udai Yadav, Arun Yadav and Anil Yadav started firing at the
deceased indiscriminately by using their pistol and sixer and
caused firearm injuries to his chest, stomach and temporal region.
The informant further alleged that all the named accused
surrounded the deceased from three sides during the occurrence of
firing so that no one could save him and also the deceased himself
could not escape from their clutch by entering into the house of
Rajendra Sao, situated in front of the place of occurrence.
According to the informant, his uncle was killed at the spot by the
accused. The informant further alleged that after killing his uncle,
Tarni Yadav, the accused also fired at him with an intention to kill
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him but anyhow he escaped from that firing and fled away and
reached his home and informed his family members about the
occurrence. As per the informant, the incident was witnessed by
the people of the nearby areas also, who would give their evidence.
Regarding the cause of occurrence, it was stated by the informant
in his fardbeyan that there was four to five bigha Gair-majarua
land which was under the possession of the prosecution party who
cultivated the same and adjoining of it the accused, Baleshwar
Yadav, Daso Yadav and one, Balmiki Yadav, father of the accused
Kamleshwari Yadav had purchased some land situated nearby the
said Gair-majarua land and the accused wanted to take the Gair-
majarua land under their possession due to which, they committed
the alleged occurrence while having common intention to kill his
uncle.
8. As per prosecution, the informant's fardbeyan was
recorded at the place of occurrence on 08.07.2003 at 9:30 am by
an assistant sub-inspector, Ramashish Paswan and on that basis,
the formal FIR bearing Surajgarha P.S. Case No. 156 of 2003 was
registered under Sections 307 and 302/34 of IPC and under
Section 27 of the Arms Act on the same day at 13:00 hrs which set
the criminal law in motion and the investigation was started by S.I.
Dhananjay Kumar (PW-6).
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9. After investigation, the police chargesheeted
altogether eight accused including the appellants namely, Mukesh
Yadav (A-1), Jalandhar Yadav(A-2), Bijay Yadav (A-3), Gulo
Yadav (A-4), Tital Yadav @ Title Yadav (A-5), Nandan Yadav (A-
6) and the co-accused Ashok Yadav and Binod Kumar Himanshu
@ Binod Yadav, out of them, the accused, Binod Kumar Himanshu
@ Binod Yadav, Ashok Yadav, Jalandhar Yadav (A-2), Tital Yadav
@ Title Yadav (A-5) and Gulo Yadav (A-4) were chargesheeted
showing them absconding. Rest thirteen co-accused who were also
named in the FIR, were not sent up by the police showing them
innocent.
10. After the submission of chargesheet, the learned
Magistrate, vide order dated 07.01.2004, took cognizance of the
alleged offences under Section 302/34 of IPC and under Section
27 of the Arms Act against all the chargesheeted accused namely,
Mukesh Yadav (A-1), Jalandhar Yadav (A-2), Bijay Yadav (A-3),
Ramgulam Yadav @ Gulo Yadav (A-4), Tital Yadav @ Title Yadav
(A-5), Nandan Yadav (A-6) and co-accused Binod Kumar
Himanshu @ Binod Kumar and by the same order, the final report
was accepted in respect of the other accused who were not sent up
by the police. By an order dated 06.03.2010, the case of the
appellants was committed to the court of Sessions and the case of
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the co-accused, Ashok Yadav, was separated on account of his plea
of juvenility.
11. As mentioned above, the appellants stood charged
for the aforesaid offences alongwith the co-accused Binod Kumar
Himanshu @ Binod Yadav who later on did not appear at the end
of the trial when the judgment was to be delivered, so, his (Binod
Kumar Himanshu @ Binod Yadav) case was separated by the trial
court and the appellants who are here, were convicted for the
charged offences and sentenced for the same.
12. During the trial, prosecution examined the following
witnesses:-
Sl. No. Name Relevancy
PW-1 Damador Yadav Brother of the deceased and he claimed
himself to be an eyewitness
PW-2 Biyas Yadav Brother of the deceased and he claimed
himself to be an eyewitness
PW-3 Rai Sahab Yadav Informant, nephew of the deceased and
he claimed himself as an eyewitness
PW-4 Asarfi Mistry A resident of Chanania village and the
victim went to his house as per
prosecution story at the relevant time
PW-5 Dr. Parshuram Prasad Doctor who conducted the postmortem
examination
PW-6 Dhananjay Kumar Investigating Officer
13. In documentary evidence, the prosecution proved the
following documents and got them marked as exhibits which are
as under:-
Ext.-1 Signature of Damodar Yadav (PW-1) on the fardbeyan
Ext.-2 Signature of Damador Yadav (PW-1) on the seizure list
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Ext.-3 Signature of Damador Yadav (PW-1) on the carbon copy of the
inquest report
Ext.-1/a Signature of informant, Rai Sahab Yadav (PW-3) on the
fardbeyan
Ext.-1/b Fardbeyan
Ext.-3/a Signature of informant, Rai Sahab Yadav (PW-3) on the carbon
copy of the inquest report
Ext.-4 Postmortem Report
Ext.-1/c The contents of the fardbeyan in the writing of A.S.I.
Ramashish Paswan
Ext.-3/B Inquest Report
Ext.-5 Signature and writing of the A.S.I. Ramashish Paswan on the
seizure list
Ext.-6 Chargesheet
14. After the completion of prosecution's evidence, the
statements of the appellants were recorded by the trial court under
Section 313 of Code of Criminal Procedure, 1973 ( in short
'Cr.P.C.') giving them an opportunity of explaining the main
circumstances appearing against them from the prosecution's
evidences. The appellants denied the main circumstances
appearing against them and claimed themselves to be innocent but
they did not take any specific defence while recording their
statements.
15. In defence, the appellants examined five persons as
defence witnesses who are as follows:-
Sl. No. Name
DW-1 Manish Yadav
DW-2 Sudhir Yadav
DW-3 Arun Kumar
DW-4 Daso Yadav
DW-5 Ramchandra Yadav
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16. While convicting the appellants, the learned trial
court placed reliance upon the evidence of PW-1, PW-2 and PW-3
deeming them eyewitnesses of the alleged occurrence and
observed that the death of the deceased was caused by firearm
injuries which was also supported by defence witnesses and got
corroboration from the medical evidence given by the doctor (PW-
5) and further observed that the investigating officer (PW-6)
established the place of occurrence and also took into account the
enmity running in between both the parties due to a land dispute as
the motive of the appellants to commit the alleged murder.
Submissions on behalf of the appellants:-
17. Mr. Rajendra Narayan, learned Senior Counsel
assisted by Mr. Jitendra Narain Sinha, Advocate has argued that
the fardbeyan of the informant, which is the basis of the
prosecution's case, is not the first version of the prosecution party
and the same was created by way of an afterthought as the first
information which had been received by the police as per PW-2 at
about 9:05 am and was also reduced into writing, was
intentionally suppressed by the police and further, the fardbeyan of
the informant which is said to have been recorded by him
(informant) at the place of occurrence, is so descriptive giving the
complete parental details of 21 accused, that it was not possible to
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have been recorded by one in such a manner before a police officer
at the place of occurrence. As per prosecution, the fardbeyan was
recorded at 9:30 am but the same reached the police station at
13:00 Hrs (1:00 P.M.) on 08.07.2003 and it was sent to the
concerned Magistrate on 09.07.2003, not immediately and these
facts are sufficient to show the creation of the fardbeyan as an
afterthought by the police in collusion with the prosecution party.
Learned senior counsel has further argued that as per FIR,
many people witnessed the commission of the alleged occurrence
but the informant did not reveal their names and during the
investigation, the I.O. recorded the statements of more than 20
persons who were independent persons and relying upon them, 13
named accused persons were not sent up but none of these
independent persons was produced and examined by the
prosecution, so, the clear picture of commission of the alleged
occurrence, did not come before the trial court and in this regard,
no explanation was given by the prosecution. It is stated that
actually PW-1 and PW-2 are not the eyewitnesses of the alleged
occurrence and PW-3, who is said to be the star witness of the
prosecution, cannot be deemed to be trustworthy in view of the
improvements which were made by him in the prosecution story
before the trial court by showing some more named accused
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persons as being assailants despite them being shown as non-
assailant in the FIR and further, he also cannot be deemed to be an
eyewitness of the occurrence in view of other surrounding
circumstances.
Learned senior counsel has further argued that though in
order to prove an offence even the evidence of a single witness is
sufficient but only when the evidence of such witness seems highly
reliable and trustworthy and if there is slight reason for creating a
doubt in the trustworthiness of such witness then independent
corroboration from other witnesses who are also said to have
witnessed the commission of the alleged occurrence, is must and
the same situation is prevalent in the present matter as PW-3 is not
fully reliable and trustworthy and the prosecution has failed to
examine any independent person, despite several independent
persons having witnessed the occurrence as per I.O., whose
statements were also recorded during investigation.
In support of above submission, learned counsel has placed
reliance upon the following judgments of the Hon'ble Apex
Court:-
(i) Masalti and Ors. vs. The State of Uttar Pradesh,
reported in AIR 1965 SC 202. Reliance has been placed on
paragraph no. 16, which is being reproduced as under:-
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"16. Mr Sawhney also urged that the test
applied by the High Court in convicting the
appellants is mechanical. He argues that under
the Indian Evidence Act, trustworthy evidence
given by a single witness would be enough to
convict an accused person, whereas evidence
given by half a dozen witnesses which is not
trustworthy would not be enough to sustain the
conviction. That, no doubt is true; but where a
criminal court has to deal with evidence
pertaining to the commission of an offence
involving a large number of offenders and a
large number of victims, it is usual to adopt the
test that the conviction could be sustained only
if it is supported by two or three or more
witnesses who give a consistent account of the
incident. In a sense, the test may be described as
mechanical; but it is difficult to see how it can
be treated as irrational or unreasonable.
Therefore, we do not think any grievance can be
made by the appellants against the adoption of
this test. If at all the prosecution may be entitled
to say that the seven accused persons were
acquitted because their cases did not satisfy the
mechanical test of four witnesses, and if the said
test had not been applied, they might as well
have been convicted. It is, no doubt, the quality
of the evidence that matters and not the number
of witnesses who give such evidence. But
sometimes it is useful to adopt a test like the one
which the High Court has adopted in dealing
with the present case."
(ii) Kathi Odhabhai Bhimabhai and Others vs. State of
Gujarat, reported in AIR 1993 SC 1193. Reliance has been
placed on paragraph nos. 2 and 4, which are being reproduced as
under:-
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"2. In this appeal Shri T.U. Mehta learned
counsel for the appellants submits that the sole
testimony of PW 1 suffers from many infirmities and
the very fact that he had given a version which is in
conflict with the medical evidence and when he has
gone to the extent of implicating four accused as
having dealt blows and when that version is found to
be incorrect it is highly unsafe to rely on PW 1's sole
testimony particularly when, admittedly, he is an
interested witness and when there was inordinate
delay in giving the report. Mr R.P. Bhatt, learned
counsel appearing for the State on the other hand,
submits that the presence of PW 1 at the scene of the
occurrence is not disputed inasmuch as he is an
injured witness and the inconsistences in his
evidence with reference to the medical evidence can
be explained and the fact that the delay in giving the
report has also been sufficiently explained."
"4. As mentioned above one of the two
eyewitnesses examined by the prosecution PW 2
turned hostile. Now coming to the evidence of PW 1
Shardulbhai we have examined the same and we
find that the version given by him is in conflict with
the medical evidence. PW 1 deposed that on the day
of the incident he was returning along with his
uncle, the deceased, after visiting the fields. When
they reached the field of Shivabhai Soni, the four
accused came running towards them. They abused
them and when the deceased objected, the accused
got annoyed. A-1 was armed with a dharia, a cutting
instrument and he gave a blow on the head of the
deceased. A-3 gave a blow with an axe with the
blunt part thereof on the temporal region of
deceased. The deceased fell down. PW 1 raised
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cries. On hearing that PW 2 Mavji Magan came
there. A-3 hit PW 1 with an axe on the head. A-1
raised the dharia to give a blow to him and pointed
end of that dharia touched on the right hand. A-2
gave a blow with an axe on the left leg. A-4 gave a
dharia blow on his head. Then all the four accused
started giving blows simultaneously with the blunt
part of the axes and with the handles of the dharias.
PW 2 further stated that all the accused further gave
a number of blows to the deceased and that 3 or 4
blows fell on the body of the deceased when he was
fallen. When PW 2 Mavji Magan came there the
accused ran away. After some time the injured were
taken to the hospital. If this version is taken to be
true then there should be number of injuries on the
deceased as well as on himself. As already noted
both the doctors, who examined the deceased, found
only one contused lacerated wound over right
fronto-parietal region and only oedema over the
right lower eyelid and the deceased died one week
later. The doctor, who conducted the post-mortem
also found only two external injuries but internally
he found the fracture of the temporal and parietal
bones. These injuries are due to injury No. 1.
Echymosis near the right eye did not cause any
internal injury. The doctor however, during the
internal examination, also found the fracture of
three ribs on the right side and fracture of two ribs
on the left side. But there were no corresponding
external injuries. If the version given by PW 1 is
taken to be true then there should have been
numerous injuries on the body of the deceased as
well as on PW 1. It must be borne in mind that he
has implicated four accused and deposed that the
four attacked him as well as the deceased. No doubt
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the medical evidence corroborates his version to the
extent that A-1 having dealt a blow on the head. But
here again we find some variation. Dharia is a
cutting instrument whereas injury found on the
deceased is a contused lacerated wound which
caused internal damage. Likewise there are no
corresponding injuries on himself. When the case
rests mainly on the sole testimony of PW 1, it should
be wholly reliable. PW 2 the other eyewitness was
treated hostile. Therefore the High Court did not
place any reliance on his evidence. Under these
circumstances, the trial court held that implicit
reliance cannot be placed on the evidence of PW 1
and in that view acquitted the accused. It cannot be
said that this view is not reasonable."
It has been further argued by learned senior counsel that the
material objects which were seized such as cartridges and bullet
shells were not produced before the trial court and the same were
not exhibited as material objects which can be deemed to be fatal
to the prosecution's case.
Learned counsel further argued that if the manner of
occurrence as described in the FIR is taken into account then there
must be countless firearm injuries over the body of the deceased
but only 4 to 5 sets of firearm injuries were found on the body.
Learned counsel lastly submitted that the deceased was a veteran
criminal and there were several cases against him and his family
members and in this regard, the evidence of PW-3, the star witness
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of the prosecution, is relevant, who accepted several criminal cases
against his family members, so, the deceased might have been
killed by someone else with whom he had enmity, though, there
was a land dispute between some of the appellants and the
deceased during the relevant period but the same was not a strong
reason on the part of the appellants to kill the deceased in a brutal
manner and it is a well settled principle of law that 'enmity cuts
both the ends' and the same can also be used to implicate one
falsely in a crime which has taken place, with revengeful attitude.
Submissions on behalf of the respondents:-
18. On the other hand, Mr. Rahul Kumar Singh, learned
counsel appearing for the informant has submitted that the
evidence of PW-1, PW-2 and PW-3 is sufficient to prove the
alleged offences and the most important witness is PW-3, the
informant, whose credibility as an eyewitness to the alleged
occurrence of murder, could not be shaken by the
defence/appellants despite cross-examining him at length with
regard to the relevant facts such as presence of the appellants at the
alleged place of occurrence and their alleged role, manner of
occurrence and other relevant facts and his sole evidence is
sufficient to bring the appellants' guilt home. It has been further
submitted that the evidence of investigating officer (PW-6) has
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established the place of occurrence as detailed in the FIR and
further, the defence witnesses did not dispute the place of
occurrence as well as killing of the victim by gun shot injuries and
in this regard, the medical evidence given by PW-5, who
conducted the postmortem examination over the body of the
deceased, is also relevant. On the body of the deceased, seven
entry wounds of firearm injuries were found which sufficiently
proves the alleged indiscriminate firing by the accused on the
deceased. So far as the motive of the accused to kill the deceased
is concerned, the same has also been established by the
prosecution's evidences as admittedly there was a land dispute in
between the parties during the relevant period of time on account
of a Gair-majarua land and the appellants and co-accused persons
committed the alleged occurrence while having common intention
to kill the deceased by using two types of firearms i.e. pistol and
sixer and as per the informant, the accused fired at the deceased
from close range which gets corroboration from the nature of
external injuries found on the body of the deceased which were
discussed in the postmortem report and the same shows that
blackening and charring/scorch were found at and near the entry
point of wounds. It has lastly been submitted that at the place of
occurrence, a motorcycle was also found which is corroborative to
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the prosecution's story as to the deceased going with the informant
on a motorcycle during the relevant time of the alleged occurrence,
thus, the prosecution has succeeded to prove the charged offences
against the appellants and they have rightly been convicted for the
said offences and there is no need to interfere in their conviction.
19. Ms. Shashi Bala Verma, learned APP appearing for
the State has adopted the submissions advanced by the learned
counsel appearing for the informant.
Consideration and Analysis:-
20. We have heard both the sides, perused the evidences
adduced by both the sides which are available on the record of the
trial court and also have gone through the statements of the
appellants.
21. Now keeping in mind the arguments advanced by
both the sides, we shall discuss the evidence of the witnesses
adduced by both the sides to see whether the prosecution's
evidences are sufficient to bring the guilt of the appellants home
for the charged offences or not and also to see whether the trial
court appreciated the evidences of both the sides in right
perspective manner or not.
22. The prosecution witness, Damodar Yadav (PW-1),
brother of the deceased, stated in the examination-in-chief that he
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heard the sound of firing and at that time, his son Rai Sahab Yadav
(informant) (PW-3) was with Tarni Yadav (deceased) and the
accused fired at his son also but he managed to escape and he told
him about the occurrence. He further stated in the examination-in-
chief that the alleged occurrence had been witnessed by Biyas
Yadav, Chandradeo Yadav, Chano Yadav, Kanhaiya Yadav and
Rajendra Sao. Here it is important to mention that among the said
persons, only Biyas Yadav (PW-2) was examined by the
prosecution. This witness stated in the cross-examination that he,
his wife namely, Sita Devi, Biyas Yadav, his mother and the wife
of the deceased and wife of Biyas Yadav were present in their
house at the time of the commission of the alleged occurrence and
he heard the sound of firing coming from north-east side and the
same was coming from a distance of 200 Gaj and the entire details
of the occurrence was told to him by his son. He further deposed
that after knowing the incident, he alongwith all his family
members went to the place of occurrence to get the details of the
incident and several co-villagers had gathered at the place of
occurrence before they had reached at the place of occurrence and
he got the details of the incident from Biyas Yadav, Kanhaiya
Yadav, Asarfi Mistry, Rajendra Sao and Chano Yadav near the
dead body of the deceased. He further stated that in a case relating
Patna High Court CR. APP (DB) No.977 of 2017 dt.15-05-2025
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to quarrel (marpit), the deceased was an accused. In paragraph no.
14 of his cross-examination, he described the boundaries of the
place where the dead body was lying and according to him, in
northern side, there was house of Asarfi Mistry, in southern side,
there was house of one, Rajendra Sao, in the eastern side, there
was house of Kameshwar Sao and in western side, there was house
of one namely, Bangali Rai at the time of occurrence. He further
stated that a motorcycle was found lying near the dead body of the
deceased and the same was of 'Yamaha' company.
From the above facts stated by PW-1, one thing is evident
that the said witness as well as his family members including
Biyas Yadav (PW-2) were present in their house when the alleged
occurrence took place and they came at the place of occurrence
after getting the information of the occurrence from the informant
and when they reached at the place of occurrence several co-
villagers had already gathered, so, in such a situation, this witness
cannot be deemed to be an eyewitness of the alleged occurrence
and the learned trial court erred in deeming him as an eyewitness
of the alleged occurrence and further, the evidence of this witness
also goes against PW-2's claim that he is an eyewitness of the
alleged occurrence.
Patna High Court CR. APP (DB) No.977 of 2017 dt.15-05-2025
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23. Prosecution witness, Biyas Yadav, examined as PW-
2, is said to be the real brother of the deceased. He stated in the
examination-in-chief that the murder of the deceased was
committed at the shop of one, Rajendra Sao and the accused used
sixer (a firearm) and pistol in killing the deceased. He further
stated that he himself saw the commission of the alleged
occurrence. Accordingly, this witness claimed himself as an
eyewitness of the alleged occurrence. This witness deposed in
cross-examination that there are several houses in between his
house and the place of occurrence and out of these houses, some
belong to one Siyaram Yadav, Ashok Mandal, Sevan Ram, Mahesh
Pandit, Shankar Thakur, Paro Thakur etc. When he was asked
about the details of the cases running against the deceased, he
stated that he did not have the knowledge of the said cases but
fairly accepted that the deceased and Damodar Yadav (PW-1),
brother of the deceased, had faced the trial of a murder case of one,
Binod Yadav, a co-villager of the deceased, in which the deceased
was acquitted. He further stated in paragraph no. 8 of his cross-
examination that the informant (his nephew) informed him about
the occurrence and at that time, his wife Kiran Devi, Bhavo (wife
of younger brother), Damodar Yadav (PW-1) and his wife, his
mother and several other persons of the village were present when
Patna High Court CR. APP (DB) No.977 of 2017 dt.15-05-2025
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the said information was being given by the informant. He further
stated in the paragraph no. 9 that he himself saw the informant and
the deceased going on a motorcycle from his house and he did not
go to the police station upon getting information of the occurrence
and his statement was recorded when the police came. He further
stated that he went to the police station alongwith Rai Sahab
(informant) after getting the information of the occurrence and at
that time, the female members of his family also went with them
to the police station and thereafter, the police reached the place of
occurrence. He further deposed in paragraph no. 11 that the
distance of Surajgarha police station is ten kilometers from his
village and they left for the police station at 9:00 am and took five
minutes in reaching the police station by a Jeep and Daroga Ji
(S.H.O.) prepared a document in the police station and his
statement was also recorded at that time and his and informant's
signatures were also taken by him. He further stated in paragraph
no. 12 of his deposition that he signed his statement before
Daroga Ji (S.H.O.) and also made his signature before the S.H.O
at his house and the police came at his house one day after the
occurrence. He further deposed in paragraph no. 13 that the people
were residing in their houses situated on the boundaries of the
place of occurrence who also saw the dead body of the deceased
Patna High Court CR. APP (DB) No.977 of 2017 dt.15-05-2025
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and they were already present at the place of occurrence before his
arrival.
From the above facts as stated by this witness, one thing is
quite clear that the said witness falsely claimed himself as an
eyewitness of the alleged occurrence which also gets support form
the evidence of PW-1 and it is also evident that several co-villagers
of this witness had reached at the place of occurrence before this
witness reached there and in the nearby houses situated on the
boundaries of the place of occurrence, the people were residing
when the alleged occurrence took place and the same is stated to
have taken place in the morning at 8:00 am. From the evidence of
this witness it is also evident that he and the informant went to
Surajgarha police station at 9:00 am and reached there within five
minutes by a Jeep and the S.H.O. recorded the statement of this
witness and got his and informant's signature upon it. As per the
prosecution's case as it appears from the FIR, the fardbeyan of the
informant was recorded on 08.07.2003 at 9:30 am at Chanania
village (place of occurrence) by a Sub-Inspector D. Kumar (PW-6)
while as per the evidence of this witness, he and the informant had
reached at the said police station before 9:30 am and at that time,
the statement of this witness was also recorded by the S.H.O. upon
which, his and informant's signatures were also taken, so, in such a
Patna High Court CR. APP (DB) No.977 of 2017 dt.15-05-2025
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situation, the fardbeyan of the informant does not appear to be the
first version of the prosecution and it can be deemed that the first
information of the alleged occurrence given by this witness, was
suppressed by the prosecution regarding which the prosecution did
not give any reason. The learned APP appearing for the State in the
present case has also failed to give any explanation regarding the
suppression of the first information. In this regard, we would like
to refer to a judgment rendered by the Hon'ble Apex Court in the
case of State of M.P. vs. Ratan Singh & Others, reported in
(2020) 12 SCC 630, wherein, the Hon'ble Apex Court while
taking into account the inconsistencies of the so-called
eyewitnesses with regard to the place of occurrence, as they had
described different places as the scene of offence, had also taken
into account the suppression of the actual FIR by the prosecution
and affirmed the decision of the High Court. The relevant
paragraph of this judgment being paragraph no. 10, is reproduced
as under :-
" 10. Additionally, the so-called eye witnesses to
the incident have described different places as the scene of
offence. None of the eye witnesses are consistent so far as
the scene of offence is concerned. This means that each of
the eye witness must have allegedly seen the incident at
different places and happening in a different manner. The
suppression of the actual FIR, coupled with the conflicting
versions of the so-called eye witnesses relating to different
Patna High Court CR. APP (DB) No.977 of 2017 dt.15-05-2025
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scenes of offence and different stories collectively would
reveal that the prosecution wanted to suppress and has
suppressed the real incident and culpability of real
culprits. The origin and genesis of the prosecution is
clearly suppressed in the case."
24. Prosecution witness, Asarfi Mistry (PW-4), though
is not stated to be an eyewitness of the alleged occurrence but
regarding some material facts of the prosecution story, such as the
informant and the deceased coming to his house on a motorcycle
for some carpenter work on the alleged day and after staying for
some minutes returning back and just after some minutes
thereafter, the alleged occurrence had taken place, his evidence is
important. He stated in examination-in-chief that the deceased
Tarni Yadav had been murdered but he did not know about the
accused and he knew about the occurrence after coming from
Delhi. This witness was not declared hostile by the prosecution. He
stated in the cross-examination that he had no personal knowledge
of the occurrence, the police did not make any enquiry from him.
In this way, the witness showed himself to be completely ignorant
about having any knowledge of the alleged occurrence. Though as
per the evidence of I.O., the alleged occurrence involving
indiscriminate firing by several persons took place near the house
of this witness in the morning.
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Accordingly, the evidence of this witness does not help the
prosecution in any way.
25. The prosecution witness, PW-6, Dhananjay Kumar
is a police officer and he was the then Station House Officer (in
short 'S.H.O.') of the concerned police station during the relevant
time and he himself investigated the present matter. He stated in
examination-in-chief that on 08.07.2003, the fardbeyan of the
informant was recorded by an assistant sub-inspector namely,
Ramashish Paswan, and he also made his signature upon it and the
said fardbeyan was recorded before him. This witness identified
his signature present upon the fardbeyan which was marked as
Ext.- '1/c'. He further stated in examination-in-chief that the
inquest report was prepared by the said ASI Ramashish Paswan
upon his direction and he also made his signature upon it. The said
signature of this witness was exhibited as '3/B'. This witness
further stated that he inspected the place of occurrence and found
the dead body of the deceased lying on village road near a two
storey building of one Rajendra Sao, a resident of Chanania village
and there was blood on the earth and he also found one cartridge of
314 bore and 4 small brass cartridges of sixer revolver and two
front part of the bullets of 315 bore as also found a red colour
caliber motorcycle without any registration number in lying
Patna High Court CR. APP (DB) No.977 of 2017 dt.15-05-2025
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condition at the place of occurrence and all these materials were
seized and in this regard, seizure memo was also prepared before
two independent witnesses. This witness further stated in cross-
examination that he recorded the statements of the witnesses
namely, Biyas Yadav (PW-2), Asarfi Mistry (PW-4), Prasadi
Mistri, Rajendra Sao and Kanhaiya Sao, all resident of Chanania
village and also recorded the statements of the witnesses namely,
Awadesh Yadav, Jatan Yadav, Ramesh Yadav, Bangali Yadav and
Ranjit Yadav, all resident of Kharra village and according to this
witness, all these persons supported the alleged occurrence. This
witness further stated in cross-examination that during
investigation, he was transferred from Surajgarha police station
and thereafter, the investigation was handed over to the then In-
charge S.H.O. of Surajgarha police station, namely, Abdul Gaffar
Khan (ASI), who later filed chargesheet in this matter. He further
deposed in cross-examination that the informant informed him on
his mobile phone at 9:00 am and at the time of recording of the
fardbeyan of the informant he was present at the place of
occurrence and at that time, ASI Ramashish Paswan and Sub-
Inspector Jawahar Paswan were also present with him. He further
stated that he also recorded the statement of Rajendra Sao, resident
of the house situated nearby the place of occurrence. According to
Patna High Court CR. APP (DB) No.977 of 2017 dt.15-05-2025
29/48
this witness, the informant and said Rajendra Prasad were
eyewitnesses of the alleged occurrence and in this regard he made
a statement in paragraph no. 25 of his cross-examination. This
witness further stated in cross-examination that he did not make
any investigation regarding the ownership of the seized
motorcycle.
From the above facts as stated by this witness, it is evident
that the first information of the occurrence had been received by
this witness at 9:00 am, though, he stated that he recorded the
fardbeyan of the informant at the place of occurrence but in this
regard, the evidence of PW-2 is completely contradictory and the
said witness (PW-2) who is own brother of the deceased, claimed
to have gone to the police station at 9:00 am where he recorded his
statement upon which he and the informant made their signatures.
As per this witness, at the time of recording of the fardbeyan of the
informant at the place of occurrence, ASI Ramashish Paswan and
SI Jawahar paswan were also present with him but they were not
examined by prosecution and according to this witness, fardbeyan
of the informant and the inquest report were recorded and prepared
at the place of occurrence at about 9:30 am. The formal FIR was
registered on 08.07.2003 at 13:00 Hrs (1:00 pm) but the inquest
report (Ext. -3) contains the details of the P.S. Case No. of the
Patna High Court CR. APP (DB) No.977 of 2017 dt.15-05-2025
30/48
present matter which shows that either the inquest report was
prepared after the registration of the formal FIR or the first column
of the inquest report was kept blank and the same was filled in
later by the investigating officer when he got the details of the
registration number of the FIR but these circumstances create a
doubt about the prosecution's case and particularly makes strong
the factum of suppression of the first version of the prosecution
party given to the police regarding the details of the commission of
the alleged occurrence.
From the evidence of this witness, one thing is also evident
that this witness, who himself conducted major part of the
investigation, recorded the statements of several persons belonging
to Chanania village and Kharra village and he claimed that the said
persons supported the alleged occurrence but none of them, except
one, Asarfi Mistry (PW-4), was produced and examined by the
prosecution and the prosecution failed to give any explanation for
not producing these persons whose evidence might be material to
bring out the truth of the occurrence and withholding of these
persons by the prosecution goes against the prosecution and in this
regard, we would like to refer to a judgment of the Hon'ble Apex
Court rendered in the case of Sekaran vs. State of Tamil Nadu,
Patna High Court CR. APP (DB) No.977 of 2017 dt.15-05-2025
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reported in AIR 2024 SC (Cri.) 201, relevant paragraph whereof
being paragraph no. 18 is being reproduced as under : -
"18. It is in the deposition of PW 11 that PW 10
had recorded the statement of, inter alia, Velukutti
earlier and that PW 11 himself had recorded the
statements of PWs 1, 2 and 3 as well as Ponnaian.
Ponnaian and Velukutti were admittedly present at the
tea stall when the alleged incident of assault took place
(version of PWs 2 & 3). The prosecution has not
explained why Ponnaian and Velikutti were not called
upon to depose despite they being present at the place of
occurrence and despite their statements having been
recorded in course of investigation. If indeed they were
unavailable to depose, it was incumbent on the
prosecution to adduce relevant evidence in that regard.
The prosecution having not examined Ponnaian and
Velikutti, Illustration (g) of Section 114 of the Evidence
Act is well and truly attracted in the present case."
So, in view of the above-mentioned principle laid down by
the Hon'ble Apex Court it should be presumed that the evidence of
the persons who have been withheld by the prosecution, would
have been unfavorable to the prosecution if they were examined on
behalf of the prosecution.
Patna High Court CR. APP (DB) No.977 of 2017 dt.15-05-2025
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As per this witness, from the place of occurrence a red colour
caliber motorcycle without having any registration number,
cartridges and bullet shells were recovered and the same were
seized by making seizure memo but these articles were not
produced before the trial court and as per the defence of the
appellants, an unknown person came on a motorcycle and shot
dead the deceased and fled away leaving behind his motorcycle
and it has come in the evidence of PW-1 that the deceased and the
informant went to the house of Asarfi Mistry, a carpenter, on a
motorcycle of 'Yamaha' company but as per the evidence of this
witness, only one motorcycle was found lying at the place of
occurrence which was a red colour caliber motorcycle and the said
contradiction could have been explained by the prosecution if in
this regard a proper investigation was made by the investigating
officer but no such investigation was done and here, it is relevant
to mention that the informant could not justify the possession of
the deceased of the motorcycle found at the place of occurrence
and in this regard, he did not give satisfactory answer when he was
cross-examined.
26. Now, we come to the evidence of PW-3 who is the
star witness of the prosecution as he was accompanying the
deceased on a motorcycle when the alleged occurrence took place
Patna High Court CR. APP (DB) No.977 of 2017 dt.15-05-2025
33/48
as per the prosecution story and the prosecution projected him as
an eyewitness, so, his evidence is very important in this matter.
The informant, Rai Sahab Yadav, was examined as PW-3.
27. Before evaluating the evidence of PW-3, Rai Sahab
Yadav, the informant of this matter, we would like to say that in the
light of the provision of Section 134 of the Indian Evidence Act
the quality of evidence of a witness is paramount to prove a
particular fact and not the number of the witnesses to prove such
fact and any specific number of witness is not required to prove a
fact. If several witnesses come before the court to prove a fact but
their evidence seems to be not qualitative then such fact can be
deemed to have been not proved by them sufficiently despite they
being in large number while on the other hand, if only one witness
is produced as an eyewitness of a relevant fact or circumstance
then for proving such fact or circumstance, the sole evidence of
such witness is sufficient. In the matter of a sole eyewitness, there
may be two situations, in first situation there may be only a sole
eyewitness of the commission of an offence and the prosecution
does not show other person or persons as eyewitnesses and in the
second situation, there may be two or more eyewitnesses of the
commission of an offence but amongst them only one is produced
before the trial court to prove the alleged offence or offences and
Patna High Court CR. APP (DB) No.977 of 2017 dt.15-05-2025
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before the trial court, the prosecution's case depends mainly on the
evidence of a witness who claims to be one of the eyewitnesses
and in both the situations particularly in the second situation, the
court should be very careful in examining the credibility and
reliability of such sole witness particularly, when there are large
number of accused. In this regard, we would like to refer to the
observations made by the Hon'ble Apex Court in the following
judgments which are being enumerated as under:-
(i) Anil Phukan vs. State of Assam reported in (1993)
3 SCC 282, wherein the Hon'ble Apex Court held as follows:-
" Conviction can be based on the testimony of a
single eyewitness and there is no rule of law or evidence
which says to contrary provided the sole eyewitness
passes the taste of reliability and also observed that where
the single eyewitness is not found to be a wholly reliable
witness in the sense that there are some circumstances
which may show that he could have an interest in the
prosecution then the courts generally insist upon some
independent corroboration of his testimony before
recording conviction."
(ii) State of Rajasthan vs. Bhola Singh, reported in
AIR 1994 SC 542, wherein the Hon'ble Apex Court held that it is
well settled that if the case rests only on the sole evidence of the
eyewitness such testimony should be wholly reliable.
Patna High Court CR. APP (DB) No.977 of 2017 dt.15-05-2025
35/48
(iii) Bhimapa Chandappa Hosamani and Others vs.
State of Karnataka, reported in (2006) 11 SCC 323, wherein the
Hon'ble Apex Court reiterated the aforesaid law and the relevant
portion thereof is being reproduced as under:-
" This Court has repeatedly observed that on the basis
of the testimony of a single eyewitness a conviction may
be recorded, but it has also cautioned that while doing so
the court must be satisfied that the testimony of the
solitary eyewitness is of such sterling quality that the
court finds it safe to base a conviction solely on the
testimony of that witness, in doing so the court must test
the credibility of the witnesses by reference to the quality
of his evidence, the evidence must be free of any blemish
or suspicion, must impress the court as wholly truthful,
must appear to be natural and so convincing that the
court has no hesitation in recording a conviction solely on
the basis of the testimony of a single witness."
28. Now, we come to the present matter. Altogether six
witnesses were examined by the prosecution in this matter before
the trial court and out of them, PW-6 is investigating officer, PW-5
is the doctor concerned who conducted the postmortem
examination over the dead body of the deceased and other four
witnesses (PW-1 to PW-4) are the witnesses of facts and
circumstances and as discussed above PW-1, PW-2 and PW-4
cannot be deemed to be eyewitness of the commission of the
alleged occurrence, so the case of the prosecution mainly depends
Patna High Court CR. APP (DB) No.977 of 2017 dt.15-05-2025
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on the evidence of PW-3, informant of the present matter as he
claims to have seen the entire occurrence and according to the
prosecution story he was accompanying the deceased during the
relevant time of the occurrence and the prosecution projected him
to be the most important witness as well as eyewitness.
29. Now, in the context of the surrounding
circumstances and other evidences, we have to find out whether
PW-3 is wholly reliable or not and whether it will be safe to justify
the conviction of the appellants solely on the basis of the evidence
of this witness deeming him as an eyewitness of the occurrence.
30. In the light of the prosecution story narrated in the
fardbeyan by this witness (PW-3) and after having gone through
the evidence given by him before the trial court as well as the
evidences given by other witnesses, we find the following
circumstances having emerged in this matter :-
Firstly, this witness gives the details of 21 accused including
the appellants revealing their complete parentage details and
narrating the entire occurrence in full sequence including the
motive of the accused to kill the deceased. The alleged occurrence
took place on 08.07.2003 and this witness was examined on
19.04.2011
and at that time he disclosed his age as twenty one year
and the same age was assessed by the trial court while recording
Patna High Court CR. APP (DB) No.977 of 2017 dt.15-05-2025
his evidence, so in view of the said age of this witness, it can be
deemed that this witness was about thirteen year old at the time of
commission of the alleged occurrence, thus, in such a situation it
was not easy for this witness to record his fardbeyan in the
aforesaid manner and it has come out in the evidence of PW-2 who
signed the fardbeyan of PW-3 that the said witness and the
informant had gone to the police station at 9:00 am on 08.07.2003
before 9:30 am, the time when the informant recorded his
fardbeyan at the place of occurrence as per prosecution and at that
time, the statement of this witness (PW-3) was also recorded by
the police officer upon which he and the informant made their
signature and in the preceding paragraphs it has been concluded by
us that the first version of the prosecution party was suppressed by
the police.
Secondly, it transpires from the evidence of this prosecution
witness that many criminal cases were pending against the
deceased and the informant. The informant accepted in his cross-
examination that he was made accused in Surajgarha P.S. Case No.
183 of 1998 registered under Sections 307 and 384/34 of IPC and
Section 27 of the Arms Act and also made accused in Surajgarha
P.S. Case No. 194/2004 relating to murder of two persons namely,
Ramanand Yadav and Dashrath Yadav. He further accepted in
Patna High Court CR. APP (DB) No.977 of 2017 dt.15-05-2025
cross-examination that the deceased and PW-2 were accused in a
criminal case bearing Surajgarha P.S. Case No. 274 of 1997
relating to the murder of one, Bindeshwari Yadav. He further
accepted in paragraph no. 10 of his cross-examination that his
father was an accused in Surajgarha P.S. Case No. 03/1979, lodged
under Section 302 of IPC. In view of these criminal cases, one
thing is quite clear that not only the deceased but also the
informant had criminal background at the time of the alleged
occurrence.
Thirdly, in the fardbeyan, this witness showed six accused
persons namely, Binod Kumar Himanshu @ Binod Yadav, Tital
Yadav @ Title Yadav (A-5), Nandan Yadav (A-6), Udai Yadav,
Arun Yadav and Anil Yadav as the assailants who had allegedly
opened fire on the deceased by using pistol and sixer but before
the trial court, this witness improved his first version by adding
some co-accused in the group of assailants and he added and
showed accused, Ashok Yadav, Mukesh Yadav (A-1), Jalandhar
Yadav (A-2) and Bijay Yadav (A-3) as being the part of the
assailant group and accordingly, he projected ten accused out of
twenty one as assailants in his court evidence.
Fourthly, as per prosecution story this witness and the
deceased were riding on the same motorcycle and they were
Patna High Court CR. APP (DB) No.977 of 2017 dt.15-05-2025
intercepted by the accused who were in large number being twenty
one and this witness claimed that he managed to escape and stood
in a lane, 10-15 feets away from the place of firing and revealed
that the accused persons also fired at him, but admittedly, not a
single scratch was caused on the body of the informant in the
alleged firing which was done by six or ten persons according to
him.
Fifthly, it has come out in the evidence of the material
witnesses including the informant (PW-3) and investigating officer
(PW-6) as discussed above that several villagers reached at the
place of occurrence during the relevant time of the commission of
the alleged occurrence which had been committed in front of the
shop-cum-house of one, Rajendra Sao and on the boundaries of the
place of occurrence, there were houses of several persons which
was admitted by the investigating officer and he also admitted that
he recorded the statements of several independent persons, who,
according to him, supported the case of prosecution but very
surprisingly none of them were produced by the prosecution and
all these independent persons were withheld by the prosecution
without giving any explanation and the non-official witnesses
including the informant who were produced and examined, are
relatives of the deceased, so, they can be deemed to be highly
Patna High Court CR. APP (DB) No.977 of 2017 dt.15-05-2025
interested in the conviction of the appellants with whom they had a
land dispute during the relevant period of time. In this regard, we
would like to refer to a judgment of the Hon'ble Apex Court,
rendered in the case of Masalti vs. State of Uttar Pradesh
(supra) in which the Hon'ble Apex Court held as follows:-
" Where an offence involving a large number of
offenders and a large number of victims then it is usual
to adopt the test that conviction could be sustained
only if it is supported by two or three more witnesses
who give a consistent account of the incident."
In the present matter, admittedly, twenty one persons are
alleged to be involved in the commission of the alleged occurrence
of murder, though, only two persons are said to be the victims of
the alleged occurrence, first is the deceased and the second is the
informant. However, in the light of above principle laid down by
the Hon'ble Apex Court, the prosecution ought to have produced
and examined some more witnesses in addition to the informant
but prosecution has failed to do so.
31. In view of the above-mentioned circumstances
surrounding the informant (PW-3), we are of the view that though
the said witness might have seen the commission of the alleged
occurrence but he does not seem to be wholly reliable and his
evidence cannot be deemed to be completely free from suspicion
Patna High Court CR. APP (DB) No.977 of 2017 dt.15-05-2025
and as per the evidence of I.O. (PW-6), two persons namely,
Rajendra Prasad and the informant (PW-3) were eyewitnesses of
the occurrence and he also revealed that there were several
independent persons whose statements were recorded by him, who
fully supported the case of prosecution, so, in such a situation,
some of these persons ought to have been produced by the
prosecution to substantiate and corroborate the allegations levelled
by the informant and in light of aforesaid circumstances, we are
persuaded to form an opinion that it would not be safe to convict
the appellants for the charged offences in the absence of
independent corroboration of the testimony of PW-3.
32. Now, we come to the manner of occurrence and
motive of the appellants to commit the alleged occurrence.
33. As per prosecution story, the accused persons being
twenty one in number including the appellants suddenly appeared
on the village road with firearms and firstly intercepted the
informant and the deceased when they were coming on a
motorcycle from Chanania village and after stopping them, the
accused persons armed with firearms surrounded the deceased
from three sides and six accused persons opened fire at the
deceased by using sixer and pistol and during the course of
occurrence, the informant managed to save himself by fleeing and
Patna High Court CR. APP (DB) No.977 of 2017 dt.15-05-2025
he claimed to have seen the occurrence from 10-20 feets away
from the place of occurrence. The said manner of occurrence
shows that the accused persons committed the occurrence in a
planned manner, if the prosecution story is believed to be true, as
before the commission of the occurrence, no sort of scuffle or
marpit or any other occurrence had taken place in between the
victims and the accused. But the surrounding circumstances do not
suggest the alleged occurrence having taken place in the said
manner since as per the prosecution story, the occurrence took
place in the morning at 8:00 am and the distance of the place of
occurrence from the house of the deceased was about 200 Gaj and
as per the informant, on the fateful day and relevant time of the
occurrence, he and the deceased had proceeded to Chanania village
to go to the house of one carpenter namely, Asarfi Mistry whose
house is situated in the said village. The distance between the
village of the deceased and the village of Asarfi Mistry, is less than
one kilometer, so, the time when the occurrence took place, and
the cause for which the deceased and the informant proceeded to
an adjacent village to take the help of one carpenter for some
domestic work do not suggest that the accused who were in large
number, had got information about the deceased's plan of going to
Chanania village on a motorcycle and during course, thereof they
Patna High Court CR. APP (DB) No.977 of 2017 dt.15-05-2025
had sufficient time to form an unlawful assembly with firearms
with a plan or common object to kill the deceased. So, the alleged
manner of occurrence does not give rise to the presumption that
the accused had sufficient time to make a plan to commit the
alleged occurrence in a planned manner with firearms and the said
circumstance also creates a doubt regarding the prosecution story,
particularly, with regard to the alleged manner of occurrence and
further, as per the defence of the appellants, the deceased was
murdered by someone else other than the named accused and the
actual assailant came on a motorcycle, caused firearm injuries
upon the deceased and fled away after leaving behind his
motorcycle. Further, as per the FIR and the evidence of the
prosecution's witnesses, there was a land dispute in between the
family of the deceased and the accused on account of 5-6 bigha
Gair-majarua land which was under cultivating possession of the
prosecution party at the time of the occurrence and as per FIR,
fifteen accused persons had their lands situated adjacent to the said
Gair-majarua land and they wanted to take possession of the said
land. But on the other hand, the deceased, the informant and their
some family members had remained involved in several criminal
cases relating to serious offences prior to the alleged occurrence,
so, the enmity in between them and the other side related to the
Patna High Court CR. APP (DB) No.977 of 2017 dt.15-05-2025
said criminal cases might be in existence at the time of the
occurrence. So, on one side there was simply a land dispute
relating to 5-6 bigha Gair-majarua land upon which fifteen named
accused of this matter wanted to create their possession but in
respect of other named co-accused such interest does not appear
and further the prosecution has failed to give complete details of
said Gair-majarua land before the trial court and the I.O. accepted
that he did not investigate about the said Gair-majarua land while
on the other hand some others might not be having good relations
with the deceased on account of past criminal cases. Hence, if we
compare both the said situations then no strong motive on the part
of the appellants in comparison with others with whom the
prosecution party might not be having good relations on account of
some past criminal cases, appears and further, as far as some of the
co-accused are concerned, there was no reason for them to be
involved with the assailants in killing the deceased as it does not
appear that they had any land situated adjacent to the said Gair-
majarua land of the prosecution party and in rural areas it is
common for the victim to often implicate several persons in a
crime which takes place, especially with whom he/she has no good
relation and in our opinion, the above circumstance relating to the
motive on the part of the appellants to commit the alleged murder,
Patna High Court CR. APP (DB) No.977 of 2017 dt.15-05-2025
also creates a doubt in the prosecution's story. It is a well
established principle of law that if two interpretations of the
evidence are possible, one pointing to the guilt of the accused and
the other to their innocence, the latter must be favoured and the
two views theory is also known as the benefit of doubt theory and
the Hon'ble Apex Court in several judgments has reinforced this
principle, emphasizing that the court should not convict an accused
person if there is even a slight doubt regarding his/her guilt even if
a guilty view is possible. In this regard, we would like to refer to a
judgment of the Hon'ble Apex Court, rendered in the case of
Harijana Thirupala and Others vs. Public Prosecutor, High
Court of A.P., Hyderabad, reported in (2002) 6 SCC 470,
paragraph no. 11 whereof is being reproduced as under :-
"11. In our administration of criminal
justice an accused is presumed to be innocent unless
such a presumption is rebutted by the prosecution by
producing the evidence to show him to be guilty of the
offence with which he is charged. Further if two views
are possible on the evidence produced in the case,
one indicating to the guilt of the accused and the
other to his innocence, the view favourable to the
accused is to be accepted. In cases where the court
entertains reasonable doubt regarding the guilt of the
accused the benefit of such doubt should go in favour
of the accused. At the same time, the court must not
reject the evidence of the prosecution taking it as
Patna High Court CR. APP (DB) No.977 of 2017 dt.15-05-2025
false, untrustworthy or unreliable on fanciful grounds
or on the basis of conjectures and surmises. The case
of the prosecution must be judged as a whole having
regard to the totality of the evidence. In appreciating
the evidence the approach of the court must be
integrated not truncated or isolated. In other words,
the impact of the evidence in totality on the
prosecution case or innocence of the accused has to
be kept in mind in coming to the conclusion as to the
guilt or otherwise of the accused. In reaching a
conclusion about the guilt of the accused, the court
has to appreciate, analyse and assess the evidence
placed before it by the yardstick of probabilities, its
intrinsic value and the animus of witnesses. It must be
added that ultimately and finally the decision in every
case depends upon the facts of each case."
Conclusion:-
34. After having discussed the material facts and
circumstances appearing from the evidences adduced by both the
sides before the trial court, we reach to the conclusion that though
the deceased was murdered by gun shot injuries and on his body
several firearm injuries were also found but in the present matter,
the prosecution produced only three non-official witnesses
including the informant projecting them as eyewitnesses of the
occurrence but there are sufficient materials, as discussed in the
Patna High Court CR. APP (DB) No.977 of 2017 dt.15-05-2025
preceding paragraphs, to deem PW-1 and PW-2 as being not
eyewitnesses of the occurrence and for the above discussed
reasons and circumstances appearing in respect of PW-3 who is
informant and said to be the star witness of the occurrence, he does
not appear to be wholly reliable, though, he might have witnessed
the occurrence but in absence of independent corroboration of his
evidence, it is not safe to hold the appellants liable for the
commission of the alleged murder, since there were several
independent persons whose evidence might have been helpful for
the prosecution to corroborate the evidence of informant but the
prosecution withheld them and all the non-official witnesses
except PW-4 who claimed themselves as eyewitness, are relatives
of the prosecution party. As such, in this matter, we find that the
appellants are entitled to the benefit of doubt, hence we are not
persuaded to affirm the conviction of the appellants for the charged
offences. Thus, the judgment and order impugned convicting and
sentencing the appellants are hereby set aside. The appellants are
given the benefit of doubt and they are acquitted of the charged
offences.
35. The appellants namely, Mukesh Yadav (A-1),
Jalandhar Yadav (A-2), Bijay Yadav (A-3) and Ramgulam Yadav
@ Gulo Yadav (A-4) {in Cr. APP (DB) No. 977 of 2017} and the
Patna High Court CR. APP (DB) No.977 of 2017 dt.15-05-2025
appellant namely, Nandan Yadav (A-6) { in Cr. APP (DB) No.
1184 of 2017} are on bail, hence, they and their sureties are
discharged from their respective bail bonds.
36. The appellant Tital Yadav @ Title Yadav {in Cr.
APP (DB) No. 1184 of 2017} is in custody, so, he is directed to be
released forthwith if his custody is not required in any other case.
37. In the result, both the appeals i.e. Cr. APP (DB) No.
977 of 2017 and Cr. APP (DB) No. 1184 of 2017 succeed and are
allowed.
38. Let the judgment's copy be sent to the trial court
concerned for needful information and compliance.
(Shailendra Singh, J)
I agree.
(Mohit Kumar Shah, J) (Mohit Kumar Shah, J)
maynaz/-
AFR/NAFR AFR
CAV DATE 29.04.2025
Uploading Date 15.05.2025
Transmission Date 15.05.2025
