Patna High Court
Kamlesh Yadav @ Kamlesh Prasad Yadav vs The State Of Bihar on 15 May, 2025
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad, Ashok Kumar Pandey
Table of Contents
Sl. Topic Page No.
No.
1. Cause Title 2-3
2. Prosecution Story 4-6
3. Findings of the Learned Trial 10-11
Court
4. Submissions on behalf of the 11-14
Appellants
5. Submissions on behalf of the 14-16
State and the Informant
6. Appreciation of the Evidences by 16-63
this Court - Deposition of
prosecution witnesses discussed
Statements under Section 313 63-64
CrPC
Defence Evidence 64-67
7. Consideration 67-96
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
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IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.117 of 2022
Arising Out of PS. Case No.-284 Year-2016 Thana- NOORSARAI District- Nalanda
======================================================
Kamlesh Yadav @ Kamlesh Prasad Yadav Son Of Late Kapil Yadav Resident
Of Village Malbigha, P.S.- Noorsarai, District- Nalanda
... ... Appellant
Versus
The State Of Bihar
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 94 of 2022
Arising Out of PS. Case No.-284 Year-2016 Thana- NOORSARAI District- Nalanda
======================================================
Dharamveer Kumar Son of Dhaneshwar Yadav Resident of Village -
Malbigha, P.S.- Noorsarai, Distt.- Nalanda.
... ... Appellant
Versus
The State Of Bihar
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 107 of 2022
Arising Out of PS. Case No.-284 Year-2016 Thana- NOORSARAI District- Nalanda
======================================================
Sukesh Kumar Son of Late Rajdeo Yadav @ Ramdeo Yadav Resident of
Village- Malbigha, P.S.- Noorsarai District- Nalanda
... ... Appellant
Versus
THE STATE OF BIHAR
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 222 of 2022
Arising Out of PS. Case No.-284 Year-2016 Thana- NOORSARAI District- Nalanda
======================================================
Sharwan Yadav @ Sharwan Kumar Yadav S/o Late Kameshwar Yadav
Resident of Village - Mal Bigha, P.S. - Noorsarai, District - Nalanda At
Biharisharif.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 117 of 2022)
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
Mr. Bhola Kumar, Advocate
Mr. Ritwik Thakur, Advocate
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
3/96
Mr. Imteyaz Ahmad, Advocate
Mr. Purushottam Kumar, Advocate
For the Respondent/s : Mr. Ajay Mishra, APP
For the Informant : Mr. Binit Kumar, Advocate
(In CRIMINAL APPEAL (DB) No. 94 of 2022)
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
Mr. Bhola Kumar, Advocate
Mr. Ritwik Thakur, Advocate
Mr. Imteyaz Ahmad, Advocate
Mr. Purushottam Kumar, Advocate
For the Respondent/s : Mr. Ajay Mishra, APP
For the Informant : Mr. Binit Kumar, Advocate
(In CRIMINAL APPEAL (DB) No. 107 of 2022)
For the Appellant/s : Mr. Shashank Chandra, Advocate
For the Respondent/s : Mr. Ajay Mishra, APP
(In CRIMINAL APPEAL (DB) No. 222 of 2022)
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
Mr. Satyam Kumar, Advocate
Mr. Arun Kumar, Advocate
Mr. Raghubir Chandrayan, Advocate
For the Respondent/s : Mr. Ajay Mishra, APP
For the Informant : Mr. Binit Kumar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 15-05-2025
Heard learned counsel for the appellants, the informant
and learned Additional Public Prosecutor for the State.
2. The appellants in these cases are seeking setting aside
of the judgment dated 17.12.2021 (hereinafter referred to as the
'impugned judgment) and the order dated 20.12.2021 (hereinafter
referred to as the 'impugned order') passed by the learned
Additional Sessions Judge-Ist, Nalanda, Biharsharif (hereinafter
referred to as the 'learned trial court') in Sessions Trial No.322 of
2017 (C.N.R. No.263 of 2017) and Sessions Trial No.408 of 2017.
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
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By the impugned judgment and order, the learned trial court has
been pleased to convict the appellants for the offences punishable
under Sections 302/34 of the Indian Penal Code (in short 'IPC')
and Section 27 of the Arms Act and ordered them to undergo
rigorous imprisonment for life and to pay fine of Rs.50,000/- each
for the offence punishable under Section 302 IPC and in default of
payment of fine, they shall further undergo simple imprisonment
for six months and rigorous imprisonment for three years and fine
of Rs.5,000/- each for the offence punishable under Section 27(1)
of the Arms Act and in default of payment of fine, they further
undergo simple imprisonment for three months. Both the sentences
will run concurrently.
Prosecution Story
3. The prosecution case is based on the fardbeyan of
Aswani Kumar Verma (PW-4) made before the S.I. Shashi Ranjan
(PW-6) on 30.11.2016 at Noorsarai High School, near Noorsarai
Railway crossing, District-Nalanda at 11.00 AM. In his fardbeyan
(Exhibit-1), the informant alleged as under:-
"That on 30.11.2016, at about 8:00 A.M., he along with
his elder cousin brother Shivendra Prasad (present Mukhiya, gram
panchayat- Noorsarai) Ashok Prasad and Mantu Kumar along with
Akhilesh Kumar, driver of the Bolero vehicle bearing registration
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
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No. BR21E-1636 had gone to Noorsarai Bazar. At about 8:30
A.M., they reached Noorsarai Bazar where Mukhiyaji went for
shaving at saloon of Barber Tapo Sharma, adjacent south of
Jagdamba Medical Hall. After sometime, Mukhiyaji returned after
shaving, then they purchased 2 kg. fish from shop of Md.
Allauddin and proceeded towards home. Mukhiyaji was sitting on
left side in the Bolero and on middle seat he, Mantu and Ashok
Bhaiya were sitting. At about 9:45 A.M., when they reached near
Noorsarai High School then one Bolero vehicle overtook them and
stopped in front of their vehicle. It is alleged that from that Bolero,
Shrawan Yadav, Dinesh Yadav, Kamlesh Yadav and one other
unknown person got down and came running towards their
vehicle. Shrawan Yadav opened the door of the vehicle and said to
Mukhiyaji "Mukhiya Ban Gaya Hai to Bahut Bara Hero Ban
Gaya Hai". Mukhiyaji said why he is talking like this. Meanwhile,
Shrawan Yadav with pistol in his hand fired on temporal region of
Mukhiyaji which hit on his cheek. Dinesh Yadav fired from his
pistol which hit on the arm of Mukhiyaji. Then Shrawan Yadav
and Kamlesh Yadav with pistol in their hand fired over Mukhiyaji
which hit near his hip. All other persons started running away after
stepping down from the vehicle due to fear of the armed criminals.
In the meantime, one motorcycle came from left side of his vehicle
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
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on which Sukesh Kumar, Dharmveer Kumar and one unknown
person were sitting, Sukesh Kumar and Dharmveer Kumar got
down from motorcycle and started chasing Ashok Bhaiya and both
fired one shot each from their pistol which hit on the chest and hip
of Ashok Bhaiya due to which he was writhing. It is alleged that
the informant and others ran towards Noorsarai Bazar saying
bachao-bachao. In the meanwhile, Rajeev Ranjan Prasad and
Anjani Kumar came there on motorcycle and all the accused
persons ran away on Bolero and Motorcycle in the north direction
towards Salempur. The informant has alleged that when they came
back to the place of occurrence, they found Mukhiyaji was lying
dead on seat of vehicle and Ashok Bhaiya was found dead on the
side of road. The informant has stated that the cause of occurrence
was that his cousin brother Shivendra Prasad had contested
Mukhiya election against Shrawan Yadav. His brother won the
election and Shrawan Yadav was defeated then he had said that he
has killed Pradeep Choudhary (Mukhiya) and will also kill him
and within six months, election will again be held."
4. After investigation of the case, the I.O. (PW-6)
submitted Charge-sheet No. 18 of 2017 dated 12.03.2017 against
accused persons including Shravan Yadav who is one of the
appellants in this case. Four accused namely (i) Kamlesh Yadav
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
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(ii) Sukesh Yadav, (iii) Dharamveer Yadav and (iv) Sanjay Kumar
were not sent up for trial. Police submitted a supplementary
Charge-sheet No. 88 of 2017 dated 16.06.2017 against two non-
FIR named accused (i) Raju Thakur and (ii) Shankar Yadav,
keeping investigation pending against nine accused persons.
Cognizance of the offences under Sections 120B, 302/34 IPC and
Section 27 of the Arms Act was taken by the learned Magistrate
and the records were committed to the court of Session.
5. Over the period, the accused persons were explained
the charges which they denied and claim to be tried. Accordingly,
charges were framed for the offences punishable under Section
302/34 IPC and Section 27 of the Arms Act on 25.08.2017 and
08.09.2017
respectively. Both the trials were amalgamated vide
order dated 08.09.2017.
6. It further appears that in this case the accused named
in charge-sheet No.18 of 2017 namely, Kartik Giri, Sanjay Kumar
and Raja Thakur named in charge-sheet No.88 of 2017 were
separated and sent to Juvenile Justice Board (J.J.B.) vide order
dated 20.06.2017. Vide order dated 08.09.2017 both the sessions
trials were amalgamated and trial commenced against 12 accused
persons.
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
7. In course of trial, the prosecution examined as many
as six witnesses and got exhibited some documentary evidence.
The list of witnesses and the documentary evidence which have
been marked exhibits on behalf of the prosecution are mentioned
hereunder in a tabular form:-
List of Prosecution Witnesses
PW-1 Rajeev Ranjan Prasad
PW-2 Mantu Kumar
PW-3 Anjani Kumar
PW-4 Ashwini Kumar Verma
PW-5 Dr. Kamlesh Thakur
PW-6 Shashi Ranjan
List of Exhibit
Ext- 1 Signature of Mantu Kumar on
Fardbeyan
Ext-1/1 Signature of Rajiv Ranjan Prasad on the
Fardbeyan
Ext- 1/2 Signature of Anjani Kumar on
Fardbeyan
Ext-1/3 Signature of Ashwini Kumar Verma
(Informant ) on Fardbeyan
Ext-1/4 Signature of Shashi Ranjan on
Fardbeyan
Ext-1/5 Fardbeyan forwarded to P.S. by S.H.O
Shashi Ranjan for registration which is
in the handwriting and signature of
S.H.O of Noorsarai P.S.
Ext- 1/6 Fardbeyan received for endorsement
and endorsed by
S.I. Ramashankar Ram.
Ext- 2 Full signature of informant on
complaint-cum-protest petition.
Ext- 2/1 Signature of learned Advocate S. Kalam
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
to Ext-2/8 on complaint-cum-protest petition on
each page.
Ext-3 Signature of Rajkishore Prasad on
Seizure list.
Ext- 3/1 Signature of Birendra Prasad on seizure
list.
Ext- 3/2 Seizure list in handwriting and signature
of Shashi Ranjan(S.H.O).
Ext-4 Postmortem report of deceased
Shivendra Prasad Mukhiyaji.
Ext- 4/1 Postmortem report of deceased Ashok
Prasad.
Ext- 5 Inquest report of Shivendra Prasad
Mukhiyaji
Ext- 5/1 Signature of Naresh Prasad Sinha on
inquest report of Shivendra Prasad
Mukhiyaji.
Ext-5/2 Signature of Virendra Prasad on inquest
report of Shivendra Prasad Mukhiyaji
Ext- 6 Inquest report of Ashok Prasad.
Ext-6/1 Signature of Narendra Prasad Sinha on
inquest report of Ashok Prasad.
Ext-6/2 Signature of Virendra Prasad on inquest
report of deceased Ashok Prasad.
Ext- 7 Formal F.I.R of Noorsarai P.S. case No.
8. After closure of the prosecution evidence, the
statement of accused persons were recorded under Section 313 of
the Code of Criminal Procedure on 12.07.2017 in which the
accused persons claimed themselves innocent.
9. The defence produced five witnesses who are as
under:-
D.W.- 1 Rudal Kumar
D.W. -2 Sri Narayan Prasad Singh
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
D.W. -3 Rampravesh Yadav
D.W. -4 Raushan Kumar
D.W. -5 Mohan Yadav @ Manish Yadav
10. The defence got exhibited two documents which
were given identification mark as 'X' and 'X/1'.
Findings of the Trial Court
11. After analyzing the evidences available on the
record, the learned trial court held that amongst 12 trial facing
accused persons, the prosecution has been able to prove case only
against four accused persons, namely, Shrawan Yadav, Kamlesh
Yadav, Sukesh Yadav and Dharmveer Yadav. As regards rest eight
accused persons, amongst whom six were not identified and two
were identified, the prosecution cannot be said to have proved the
case beyond doubt. So, the learned trial court acquitted the rest
eight accused persons giving them benefit of doubt.
12. The learned trial court held that the prosecution has
proved the case of murder of Shivendra Prasad Mukhiya and
Ashhok Prasad by the accused persons namely, Shrawan Kumar
Yadav, Kamlesh Prasad Yadav, Sukesh Kumar Yadav and
Dharamveer Yadav. It has been held that the motive behind the
occurrence, intention to cause death, manner of occurrence and
place of occurrence have been duly proved by the prosecution. It
has further been held that there is no doubt on the point of
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
identification of these four accused persons. The statement of the
witnesses, who are said to be eye witnesses, are fully trustworthy.
The learned trial court held that the defence has failed to impeach
the credibility of the prosecution witnesses.
Submissions on behalf of the appellants
13. In appeal before this Court, the appellants have been
led by Mr. Ajay Kumar Thakur, learned counsel. It is submitted
that the learned trial court has committed serious error in
appreciating the evidence available on the record. The learned trial
court has not appreciated the contradictory version of the
prosecution witnesses and has wrongly relied upon the version of
the prosecution witnesses who are family members of the
deceased, inimical to the appellants and are falling in the category
of related and interested witnesses.
14. Learned counsel submits that in the present case
even though the place of occurrence is said to be a busy Patna-
Biharsharif Bhaya Chandi Road, there is no independent witness
on behalf of the prosecution. The prosecution has adopted a pick
and choose policy in examining the charge-sheet witnesses and
some of the charge-sheet witnesses have either been withheld or
examined on behalf of the defence.
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
15. Learned counsel submits that on a perusal of the
evidence of PW-4 (informant) and PW-2, it would appear that they
are not eye-witnesses. So far as PW-1 and PW-3 are concerned,
they are the chance witnesses and it would not be safe to convict
the appellants on the basis of their testimony, they are highly
inconsistent and contradicting each other on material aspect of the
matter.
16. Learned counsel for the appellants has submitted that
in this case the informant (PW-4) has admitted that the inquest
reports were prepared first and then his statement was recorded by
the I.O. (PW-6). He has pointed out that on perusal of the inquest
report, it would appear that one of the inquest reports (Exhibit '6')
was, though prepared at 2.00 PM i.e. three hours after recording of
the fardbeyan but it does not bear the case number, therefore, the
prosecution story cannot be taken as authentic. It is pointed out
that while on the inquest report (Exhibit-6) of Ashok Kumar, the
date and time of preparation of inquest report is mentioned in
column '1', in the inquest report (Exhibit '5') of Shivendra Prasad,
column '1' of the inquest report has been left blank. The I.O. has
not collected blood from the place of occurrence and the Bolero
vehicle and he has not tried to obtain the call details report and the
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
tower location of the mobile phones of the informant (PW-4) and
witness (PW-1) who admitted that they were carrying mobile.
17. Learned counsel submits that the conduct of the
informant (PW-4) is not natural. He was accompanying the
deceased persons in the vehicle and after the occurrence he claims
to have got down from the vehicle from the right side and started
running away. He had a mobile phone with him but he did not
make any telephone call to the police station or to the family
members of the deceased.
18. Regarding the manner of occurrence, it is submitted
that according to the prosecution Shivendra Mukhiya was sitting
on the front left side of the vehicle and the three accused persons
had approached him from the left side only but the postmortem
report of the deceased would show that he had received fire arm
injury no.1 in the right side of the face which could not have been
possible if the firing was done from the left side. The doctor (PW-
5) has stated that injury no.1 was caused from right side.
19. Learned counsel for the appellants Kamlesh Yadav,
Sukesh Prasad and Dharamveer Yadav has submitted that after
investigation police had not found sufficient material to proceed
against them, hence they were not sent up for trial but later on, the
learned trial court differed with the police report and issued
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
summons to these appellants. It is submitted that the prosecution
evidence is full of material contradictions, hence it would not be
safe to rely upon the evidence of the prosecution witnesses.
Submissions on behalf of the State and the informant
20. Learned counsel for the informant as well as learned
Addl.P.P. for the State have jointly opposed these appeals. It is
submitted that in this case the informant (PW-4) has given the
narration of the entire occurrence. He is an eye witness of the case.
He has explained his conduct saying that after the occurrence he
was nervous so he had not made any call to the police. He has also
stated that the police had arrived at the place of occurrence within
20-25 minutes. His fardbeyan was recorded by police at the place
of occurrence and even though his presence has been questioned
by the defence in course of cross-examination, he has withstood
the test of the cross-examination.
21. Learned counsel submits that no doubt the I.O.
Shashi Ranjan has not well performed his duty as an Investigating
Officer of the case honestly and diligently and there are some
apparent contradictions in the evidence of PW-1 and PW-3 which
may lead to disbelieve them as eye-witnesses but PW-2 and PW-4
were present in the Bolero vehicle with the deceased, they are
reliable and trustworthy witnesses. The defence has suggested to
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
the I.O. that he was under immense political pressure from local
M.L.A. and an M.L.C. whose brother's name had also transpired
in course of investigation, the I.O. has though denied the
suggestion of the defence in paragraph '84' of the deposition but it
is evident that the I.O. (PW-6) has not performed his duties as per
the standard operating procedures in course of investigation of a
murder case. Be that as it may, it is submitted that in this case the
evidence of the prosecution witnesses would duly prove the whole
prosecution case has been proved beyond all reasonable doubt and
the learned trial court has not committed any error in appreciation
of the evidence.
22. Learned counsel submits that presence or absence of
rigor mortis cannot be taken as a scientific reason to asses the
exact time of death. It cannot be scientifically and precisely
established by referring to the presence or absence of the rigor
mortis. Learned counsel relies upon a judgment of the Hon'ble
Supreme Court in the case of Baso Prasad & Ors. vs. State of
Bihar reported in (2006) 13 SCC 65 (paragraph '21' and '22')
23. Learned counsel further submits that in this case
there is no delay in lodging of the FIR. The FIR reached to the
court of learned jurisdictional Magistrate on the very next day of
the occurrence. Thus, there was no chance of concoction of a story.
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
It is submitted that the prosecution witnesses are no doubt family
members of the deceased but their evidence cannot be discarded
only for this reason. Reliance has been placed on the judgment of
the Hon'ble Supreme Court in the case of Rajesh Yadav Vs. State
of Uttar Pradesh reported in (2022) 12 SCC 200 (para '31' and
'34').
24. It is pointed out that the I.O. (PW-6) has given both
kind of statements with regard to the sequence of preparation of
inquest reports and the fardbeyan. In paragraph '41', he has stated
that he had first recorded the fardbeyan and then prepared the
inquest report. It is submitted that from the inquest report of Ashok
Prasad (Exhibit-6), it is evident that the same was prepared at 2.00
PM. The non-mentioning of the FIR number would not be fatal in
this case because the fardbeyan has been recorded at 11 O'clock
itself, there was a huge protest from the local people and the I.O.
has stated about the huge crowd which he had to handle at the
place occurrence. In these circumstances, the non-mentioning of
the P.S. case number on the inquest report would not prove fatal to
the prosecution case.
Appreciation of the evidences by this Court
25. We have taken note of the fardbeyan of the
informant (PW-4) hereinabove. In course of trial, the informant
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
(PW-4) has narrated the occurrence. The date, time and place of
occurrence as alleged by him in his fardbeyan has been reiterated
in his deposition. He has stated that Shrawan Yadav fired upon the
Mukhiya which hit on his Kanpatti then Dinesh Yadav took out the
pistol and shot at the Mukhiya which hit on his shoulder and
thereafter Shrawan Yadav and Kamlesh Yadav both fired on the
Mukhiya which hit on his waist.
According to PW-4, Ashok, who was sitting in the middle
seat of the vehicle, opened the left side gate and started fleeing
away whereupon the three persons came on a motorcycle and from
amongst them Sukesh Yadav and Dharamveer Yadav were having
pistol and both of them fired on Ashok which hit on his waist and
chest. One person was driving the motorcycle, he remained on the
motorcycle. He has stated that he, Mantu and Akhilesh driver had
got down from the right side gate and they were going towards the
market when Rajeev (PW-1) and Anjani (PW-3) were coming from
the market by their motorcycle. They were standing and had
parked their motorcycle. Then they returned back and saw that
Sharwan Yadav, Dinesh Yadav, Kamlesh Yadav and one unknown
person were going towards in the north side by Bolero vehicle and
on one motorcycle Sukesh Yadav, Dharamveer Yadav and one
unknown person were going towards north. When they came near
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
the vehicle then they found that Mukhiyaji and Ashok both were
lying dead on the earth. This witness has given the motive behind
the occurrence. According to him, his brother Mukhiyaji had
contested election with Shrawan Yadav in which his brother had
won the election and Shrawan Yadav had lost. This is the reason
behind the occurrence. This witness has stated that he was weeping
whereafter crowd assembled and police came and started inquiring
about it. This witness has stated that police had prepared the
inquest reports and thereafter Darogaji had recorded his statement.
He has proved his statement recorded by Darogaji. He has
identified his signature thereon. He has stated that the fardbeyan
was recorded by Shashi Ranjan (PW-6). He has also identified his
signature. At his instance, Exhibit-1/3 and ¼ have been proved.
This witness has also proved the seizure list of the four empty
cartridges on the base of which 8 M.M. and K.F. was written
which were found at the place of occurrence. In the same seizure
list (Exhibit '3'), I.O. had seized one pellet which was stuck into
the right side gate of the backside seat and one pellet near the
backside seat. He has proved the signature of the seizure list
witnesses Rajkishore Prasad and Birendra Prasad which have been
marked as Exhibit '3' and '3/1' respectively. He has stated that two
pellets got stuck into the right side gate of middle seat. He
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
identified Shrawan Yadav, Kamlesh Yadav, Sukesh Yadav and
Dharamveer Yadav in the dock. From amongst the accused, who
were not present, he claimed that he could have identified Dinesh
Yadav and two unknown accused.
26. PW-4 has stated that in course of investigation, he
came to know that two unknown persons were Kamlesh Yadav of
village-Manikpur, Harnaut and the unknown person who was on
motorcycle was Shailesh Yadav of village-Malbigha. He has stated
that father of Shivendra Mukhiya and his father were full brother.
His uncle Ganesh Prasad is ex-mukhiya of the panchayat. There
are two sons of Ganesh Prasad, namely, Shashi Ranjan Prasad and
Rajeev Ranjan Prasad (PW-1). Shashi Ranjan Prasad was running
medical hall at Noorsarai and was also working as an agent of LIC.
Rajeev Ranjan Prasad (PW-1) was working as a teacher in
Bakhari.
27. In his cross-examination, PW-4 has reiterated that
he was sitting on the middle seat of the vehicle. He has stated that
they were three persons and Ashok (one of the deceased) was
sitting in the left side, in the middle Mantu (PW-2) was sitting and
in the right side this witness was sitting. Shivendra Mukhiya was
sitting on the front seat in the left side and in the right side
Akhilesh driver was sitting. According to him, the occurrence had
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
taken place within four minutes and he remained sitting in the
vehicle during this period. He ran from there after the occurrence
had taken place. He was afraid. This witness was suggested that in
the vehicle neither he nor Mantu (PW-2) were present which this
witness denied.
28. He denied the suggestion that after lapse of long
time of the occurrence, he came from Noorsarai market and Mantu
(PW-2) came from village Belsar. Again, this witness has denied
the suggestion.
29. In his cross-examination, this witness has stated that
after running away towards Noorsarai Bazar when he came back
with Rajeev Ranjan Prasad (PW-1) and Anjani (PW-3) within 2-3
minutes after going to 15-20 feet, the accused persons were sitting
in the vehicle and on return, they found that Ashok was lying on
the earth, he was dead and Shivendra Mukhiya was in the vehicle
itself in injured and dead condition lying in between both the seats.
The blood had fallen on the earth. He has also stated that on the
middle of the seat, where he was sitting, there was no blood stains.
He has stated that in the right side gate pellet had stuck. According
to him, the driver also remained sitting in the vehicle for four
minutes during the occurrence. This witness was suggested that if
he and Mantu (PW-2) were in the vehicle they would have also
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
protested and must have suffered injury so they were not present in
the vehicle. This witness denied the suggestion. This witness has
stated that he had not given any information to family members or
in the village. He has also not given the information to police.
Police had arrived after 20-25 minutes of occurrence and prepared
the inquest report within ½ an hour-45 minutes. His statement was
recorded at about 11.00 AM. In paragraph '41' of his deposition,
he has stated that first of all his statement was recorded, thereafter
the statement of Mantu and statement of Rajeev Ranjan Prasad
were recorded. He had also seen the fish but he does not know
what happened to the fish. After three months of the occurrence,
PW-4 had filed a protest petition i.e. on 28.02.2017. At the time of
filing of the protest, he was not aware of the names of the two
unknown persons, therefore he had not given the name of the
persons in the protest petition. He did not remember that after
filing of the protest petition, the charge-sheet was filed or prior to
that the charge-sheet was filed. He had not disclosed the name and
address of the two unknown persons.
30. This witness was suggested by the defence that S.P.,
Nalanda had himself gone to the place of occurrence and inspected
the same and had recorded the statement of this witness and other
witnesses. He was suggested that after the investigation, it was
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
found that all these persons whose names he had given in the
fardbeyan were not involved in the occurrence. This witness
denied the suggestion. He was suggested that he has wrongly
deposed that at the time of occurrence, he was in the vehicle. He
denied the suggestion. The defence further pointed out that he was
not present at the place of occurrence and for this reason despite
having mobile in his possession, he had not given any information
about the occurrence to any member of the family. This witness
denied the suggestion that Shivendra Mukhiya had a land dispute
with Surendra Mahoto and Rameshwar Paswan and for this reason
some other persons had murdered him. In course of cross-
examination on behalf of the accused Kamlesh, Sukesh and
Dharamveer this witness has stated in paragraph '87' that he knew
Sukesh, Dharamveer and Kamlesh prior to this election. He knew
them from previous election. They were involved in support of
Pradeep Chaudhary who had own the last election. This witness
was suggested that it is because these three persons had not
supported the candidature of the candidate of his village, he had
falsely implicated them because of the said enmity. This witness
denied the suggestion.
31. In paragraph '59' of his deposition, he has admitted
that at the time of occurrence, he had a mobile phone with him of
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
which number is 8434469039 but he did not remember that mobile
phone was available with the other persons. The I.O. had not taken
mobile number during investigation, however, he was suggested
that he had not given the mobile number to the I.O. purposely in
order to conceal his location which could have been known by
obtaining tower location. He has stated in paragraph '62' that at
about 8.00 AM when he had left the village with Mukhiyaji, at that
time there was little fog. The defence suggested that at that time
there was dense fog and it was winter season. The deceased was
wearing sweater and track suit and even Ashok was wearing
sweater. PW-4 denied the suggestion. He was suggested that he
had not gone with Mukhiyaji from the village, therefore, no one
from the village had come to support him.
32. He did not know that on whose information police
had reached at the place of occurrence. According to him, police
reached at the place of occurrence at about 10.00-10.15 AM. He
has stated that on the photocopy of the inquest report (Exhibit '6')
in column '1' date and time of preparation of inquest report of
Ashokji is 30.11.2016 at 14.00 hours. This witness was suggested
by the defence that at the time of occurrence, Kamlesh Yadav was
with Bara Babu (DW-2) and Chowkidar of Bhaganbigha O.P.
(DW-3) in Musepur Khandha and he was involved in a panchayati.
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
He has been further suggested that at the time of occurrence
Sukesh Kumar was working in a poultry farm in the district of
Karnal, Haryana and with him, his co-villager Nitish was also
working and he was there at the time of occurrence. He was
further suggested the accused Dharamveer was doing DCA from
Satyam Computer Centre, Sohsarai and at the time of occurrence,
he was there and with him Raushan Kumar and Vikash Kumar, the
two students were also there. This witness denied the suggestion.
He has denied the suggestion that he had given false evidence.
33. It would appear from the fardbeyan and oral
testimony of the informant (PW-4) that he has named one Mantu
Kumar (PW-2) as another eye witness of the occurrence. PW-2
was sitting in the same vehicle on the middle seat when the
occurrence took place. PW-2 had put his signature as a witness on
the fardbeyan of the informant. His signature has been marked
Exhibit-1. In his examination-in-chief, PW-2 has stated that on the
date of occurrence he had left his home at 8.00 Am by Bolero
vehicle bearing Reg. No.BR21E 1636 with Mukhiyaji Shivendra
Prasad, Ashok Bhaiya, Ashwani Ji and driver Akhilesh and they
had come to Noorsarai. His rest of the depositions are on the line
of the deposition of PW-4. He has stated that one Bolero vehicle
had overtaken his vehicle and stopped and from the said vehicle,
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
Shrawan Yadav, Dinesh Yadav and Kamlesh Yadav and one person
who could not be identified at that time came running to the
vehicle of this witness. He has further stated that Shrawan Yadav
had fired from the pistol in his hand on the temporal/cheek of
Mukhiyaji. Dinesh Yadav fired from his pistol which hit on the
shoulder of the Mukhiyaji and again Shrawan Yadav and Kamlesh
Yadav fired on Mukhiyaji which hit on to his stomach. Thereafter,
this witness claims that he fled from the right side of the vehicle.
Ashwani and driver Akhilesh also fled from the right side. Ashok
fled from the left side. Then from the left side Sukesh Yadav,
Dharamveer Yadav and one unknown person who was driving the
motorcycle came and Sukesh Yadav and Dharamveer Yadav got
down from the motorcycle and fired on Ashok Bhaiya one round
each which hit on his chest and stomach. This witness has stated
that they ran towards south direction and at about 20-25 meters
(then he says 20-25 feet) Rajeev Ranjan Prasad (PW-1) and Anjani
Kumar (PW-3) were on motorcycle and they turned around and
saw that Shrawan Yadav, Dinesh Yadav, Kamlesh Yadav and one
unknown person were fleeing towards north direction and Sukesh
Yadav, Dharamveer Yadav and another unknown person who was
driving the motorcycle were also fleeing away towards the north
direction. He has given the reason behind the occurrence as that of
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
election rivalry. This witness has stated that police came at the
place of occurrence and first of all recorded the fardbeyan of the
informant (PW-4) on which he had put his signature. Anjani
Kumar (PW-3) had also put the signature as a witness on the
fardbeyan. He identified Shrawan Yadav, Kamlesh Yadav, Sukesh
Yadav and Dharamveer Yadav who were present in Court. Dinesh
Yadav was not present. He claims that he can identify the other
two unknown persons who were present at the place of occurrence.
This witness has stated in paragraph '8' of his deposition that later
on he came to know that the two unknown persons were Kamlesh
Yadav of village-Manikpur and Shailesh Yadav of village-
Manbigha, Noorsarai.
In his cross-examination, the defence questioned his presence
at the place of occurrence and it was suggested to this witness that
he was not present at the place of occurrence. This witness has
stated that he had come to purchase medicine for his mother and
on the date of occurrence he had purchased medicine from
Jagdamba Medical Hall, proprietor of which is Shashi Ranjan,
brother of Rajeev Ranjan (PW-1). He has stated in paragraph '32'
of his deposition that the accused persons were in the left side of
the vehicle. They were not in the right side, therefore, this witness
could flee away from the right side. After the firing upon
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
Mukhiyaji they had started fleeing away. Ashokji had also started
fleeing after Mukhiyaji suffered the shot. The accused persons had
not fired upon them. In paragraph '37' of his deposition, this
witness has stated that when he returned to the place of occurrence
with Rajeev Ranjan Prasad (PW-1) then they found that Ashok
Bhaiya and Mukhiyaji both were dead and when he returned there,
none of the accused was present and all had fled away. From
paragraph '37' of the evidence of PW-2, it appears that he returned
with only Rajeev Ranjan Prasad (PW-1) and when he returned the
accused persons were not there. In paragraph '43' of his
deposition, this witness has stated that before police he had stated
to have seen one fire arm injury on to the stomach of Ashok. In
paragraph '44' of his deposition, this witness has stated that before
police he had not stated that about two persons he had come to
know that they were Kamlesh Yadav of village-Manikpur, Harnaut
and Shailesh Yadav of village-Malbigha, Noorsarai. He has stated
that he came to know it later on. It is evident from paragraph '44'
of the deposition of PW-2 that on the date of occurrence when the
statement of this witness was recorded by the I.O., till then he was
not aware that the unknown persons were Kamlesh Yadav and
Shailesh Yadav. This is required to be examined keeping in view
that in his fardbeyan the informant has given the name of one
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
Kamlesh Yadav, son of late Kapil Yadav of village-Malbigha, P.S.-
Noorsarai, District-Nalanda but this witness has stated that he
came to know later on that one person was Kamlesh Yadav of
village-Manikpur, Harnaut. He was suggested in paragraph '45'
that he was making a false statement that at the time of occurrence
he had gone to market with Mukhiyaji in the same vehicle and was
returning with him. This witness denied the suggestion. The
defence has suggested that the driver Birendra was not on the
vehicle and Mukhiya Shivendra was himself driving the vehicle.
34. In his cross-examination on behalf of Sukesh Yadav,
Kamlesh Yadav and Dharamveer Yadav this witness was
questioned about his going to the medical shop. This witness has
stated that he had gone to Jagdamba Medical Hall where he had
met Pintu Kumar who is staff of the medical hall (not examined
even as he was a charge-sheet witness). He has also stated about
the presence of Rajeev Ranjan Prasad (PW-1) in the shop. In
paragraph '62', he has stated that the entire occurrence took place
within 2-3 minutes. The accused Sukesh, Dharamveer and
Kamlesh are not from his village but they are from the same
panchayat and they are from village Malbigha. He has stated in
paragraph '63' of his deposition that Bolero which has overtaken
the vehicle of Mukhiyaji stopped in north side of the vehicle but
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
they were not facing each other. He has stated that when the
accused persons came down from the vehicle and ran towards
vehicle of Mukhiyaji, they were not having pistol in their hand but
they took out the same in course of exchange of words. In
paragraph '68' of his deposition, he has stated that when they were
fleeing away from the vehicle and were at the distance of 3-4 feet,
then the accused Sukesh and others came from bike. He has stated
that he was running towards south after coming down from the
vehicle whereas Sukesh and Dharamveer came from the south. In
paragraph '69', this witness has stated that no firing had taken
place on them when they were fleeing away. They had heard two
rounds of firing while fleeing away. From the deposition of this
witness, it appears that no firing had taken place on Ashok (one of
the deceased) in presence of PW-2.
35. PW-2 along with PW-4 and the driver had started
fleeing away from the right side of the vehicle towards the
southern direction whereas Ashok was killed when he tried to flee
away from the left side. PW-2 has clearly stated in paragraph '69'
of his deposition that he had heard two rounds of firing. It is, thus
evident that his statement in paragraph '2' of his examination-in-
chief that Dharamveer and Sukesh had fired one shot each on
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
Ashok, has not been seen by this witness. He is, thus, not an eye
witness of the killing of Ashok by Dharamveer and Sukesh.
36. This witness has stated in paragraph '72' that the
police station is at a distance of 1½ kilometers. He had not given
information to police at the police station. He was not aware as to
who had given information to police. This witness was suggested
that with due diligence the first statement was made before the
police after three hours of the occurrence. He did not know that for
which work Ashwani Babu had come to Noorsarai. He was not
aware as to whether Darogaji had collected blood from the place
of occurrence. This witness was suggested by the defence that
Dharamveer was studying in Shivam Computer Centre at Sohsarai,
Biharsharif and he was in Sohsarai at the time of occurrence. It
was also suggested that Sukesh Kumar was working in a poultry
farm in Haryana and on the date and time of occurrence he was in
Haryana. It was further suggested that accused Kamlesh Kumar
was in Bhaganbiha on the date and time of the occurrence in
connection with a panchayati and he was with the officer incharge
of Bhaganbigha O.P. in the panchayati. They were also falsely
implicated in this case. This witness denied the suggestion.
37. From the deposition of the informant (PW-4) and the
Mantu Kumar (PW-2), it is evident that they had neither informed
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
police about the occurrence nor to any of the family members of
the deceased. Both of them claim to have met Rajeev Ranjan
Prasad (PW-1) and Anajni Kumar (PW-3) who were on motorcycle
but they did not go to the police station to report the occurrence.
The police station is situated at a distance of 1 ½ kilometers only,
therefore, it could have hardly taken 3-5 minutes in reaching the
police station.
38. Now, we would notice the evidence of two witnesses
namely Rajeev Ranjan Prasad (PW-1) and Anjani Kumar (PW-3)
who would fall in the category of chance witnesses. Admittedly,
they have not seen the occurrence from the beginning. They have
not seen that who fired upon the deceased Shivendra Mukhiya.
From the fardbeyan and deposition of the informant (PW-4), it is
evident that the informant met PW-1 and PW-3 while he was
fleeing away towards Noorsarai market. The informant has stated
in his fardbeyan that PW-1 and PW-3 came on a motorcycle when
he was fleeing away raising hulla towards Noorsarai market and
thereafter all of them turned around and saw that all the accused
persons were fleeing away by Bolero vehicle and motorcycle
towards the north side. PW-4 has stated in his fardbeyan that after
the criminals had gone then they returned to the place of
occurrence where they found that Mukhiyaji was lying dead on the
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
said vehicle and dead body of Ashok was lying nearby on the road.
In his fardbeyan, therefore, the informant has not claimed that
Rajeev Ranjan Prasad (PW-1) and Anjani Kumar (PW-3) had seen
the occurrence of firing. When PW-1 came to depose in course of
trial, in his examination-in-chief, he has stated that he had come to
Noorsarai market in the morning and at 9.45 AM he was going
towards his home by motorcycle. With him, Anjani Kumar (PW-3)
was also present. In paragraph '2' of his deposition, he has stated
that when he reached near the high school on the main road of
Noorsarai, he saw that Shrawan Yadav, Kamlesh Yadav and
Dinesh Yadav were firing upon Mukhiyaji who was sitting on the
front side of the Bolero vehicle. He has not said that there was any
unknown person involved in the firing. This witness has stated that
he saw that from the left side of the vehicle Ashok Kumar got
down and wanted to flee away then Dharamveer Yadav and
Sukesh Yadav fired upon him by pistol. Immediately in paragraph
'3' of his deposition, PW-1 has stated that Ashwani Kumar, Mantu
Kumar and Akhilesh Kumar were coming running towards him
and they said that firing is taking place upon Mukhiyaji,
whereafter this witness found that all the five persons, namely,
Shrawan Yadav, Kamlesh Yadav, Dinesh Yadav, Dharamveer
Yadav and Sukesh Yadav had fled away towards the north side. At
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
this stage, he has stated that there were two other accused, one of
whom was on the Bolero and another was on the motorcycle, they
had also fled away towards north side. This witness was suggested
by the defence that in course of investigation, accusation against
Sukesh Yadav, Kamlesh Yadav and Dharamveer Yadav were not
found true but he was concealing this fact knowingly. This witness
denied the suggestion to this effect made in paragraph '13' of his
deposition. He has stated that Sukesh, Kamlesh and Dharamveer
Yadav were known to him because they used to come in the village
during the panchayat election, they were not candidate but they
used to come to accused Sharwan Yadav.
39. This witness has stated that he is a teacher in
Primary School, Bakhari and his school is at a distance of 3-4 km
from Noorsarai market. The school starts from 9 O' clock in the
morning and continues till 4.00 PM. He claims that on the date of
occurrence, he was on leave. He has stated that headmaster grants
the leave. This witness has stated that he can produce the school
register in proof of the fact that he was on leave. This witness was
suggested by the defence that on the date of occurrence he was not
on leave and only to become a witness in this case he is claiming
that he was on leave on the date of the occurrence. He was also
suggested that in course of investigation, the school attendance
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
register was not shown to the I.O. This witness denied the
suggestion and said that the I.O. had not asked for the attendance
register and he had not said that he was on leave on the date of
occurrence because he was not asked this question during
investigation. In paragraph '31' of his deposition, this witness has
stated that he kept mobile and he was in possession of mobile and
he had come to his shop from the house. He could not say as to
whether Anjani Kumar (PW-3) was keeping mobile or not. The
I.O. had not asked for mobile number of this witness, therefore, he
had not shown his mobile to the I.O. during investigation. He was
aware that from the mobile, tower location could have been traced
and it could have been known that at the time of occurrence
whether he was at the place of occurrence or not. He was
suggested that because of this knowledge on his part he had not
shown the mobile to the I.O. This witness denied the suggestion.
40. In paragraph '32' of his deposition, PW-1 has stated
that for the first time, he had seen the accused persons from a
distance of 15-20 feet and he had seen that the accused persons
were firing upon Mukhiyaji. They had fired from a close to the
vehicle. It is evident from this statement of PW-1 that he claims to
be a chance witness, he was going to his house and has seen the
occurrence from a distance of 15-20 feet. PW-2 and PW-4 have
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
stated that the occurrence had taken place within 3-4 minutes and
they had started fleeing away from the right side of the vehicle
only after Mukhiyaji had received fire arm injury. They have stated
that while they ran to 15-20 feet towards south direction, they saw
PW-1 with PW-3 coming on a motorcycle. PW-1 has not claimed
in paragraph '32' that he had seen the firing upon the another
deceased Ashok. In paragraph '43' of his deposition, he has only
stated that on the body of Ashok there were two fire arm injuries,
one was on his stomach and another was on his chest. In paragraph
'45', he has stated that neither he nor Anjani Kumar (PW-3) had
informed the police station by mobile. He was not aware whether
Mantu had informed the police station or not. In paragraph '46', he
has stated that he was not aware as to on whose information police
had reached the place of occurrence.
41. PW-1 has stated that regarding occurrence he had
given telephone call to his brother Shashi Ranjan Prasad who had
received the call and after receiving information Shashi Ranjan
Prasad and his wife and family members of Mukhiyaji had arrived
at the place of occurrence. It is important to note that in paragraph
'49' of his deposition, this witness has stated that before police he
had stated that he was told by Ashwani Kumar, Mantu Kumar and
Akhilesh Kumar that firing is taking place on Mukhiyaji. He had
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
stated before police only about fleeing away towards north side.
He had not stated before police about fleeing away by motorcycle.
From this part of his evidence, it appears that this witness came to
know about the firing upon Mukhiyaji from Ashwani Kumar (PW-
4), Mantu Kumar (PW-2) and Akhilesh Kumar (not examined). He
had not said about the accused fleeing away by motorcycle.
42. PW-1 has further stated in paragraph '50' of his
cross-examination that before police, he has stated that Ashok
Kumar got down from left side of the vehicle and wanted to flee
away then Dharamveer Yadav had fired upon him. Again, it
appears from this part of his deposition that he has not named
Sukesh Yadav as assailant of Ashok. He was also suggested that
Dharamveer was studying at Sohsarai in Biharsharif at the time of
occurrence. In his cross-examination on behalf of Sharwan Yadav
he was suggested that Shivendra Mukhiya had land dispute with
Surendra Mahto of his village and he has also a land dispute with
Rameshwar Paswan who has four bighas of land and because of
this land dispute he has been killed and Sharwan Yadav has been
falsely implicated in this case. This witness has given the
description of the distance between Jagdamba medical hall and the
place of occurrence. He has stated that north to his shop for 2-3
hundred yards, shops are there in both sides of road. After 2-3
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
hundred yards from the shop there is a petrol pump and at some
distance towards north there is a high school. In paragraph '75',
this witness has stated that when he along with Anjani started by a
motorcycle from his shop, he cannot say that after reaching how
much of the distance he came to know about the occurrence. He
said that 15-20 feet ahead of the place of occurrence, he had seen
the occurrence. In paragraph '77', he has stated that he had met
Mantu, Akhilesh and others while fleeing away from the vehicle,
at a distance of 15-20 feet from the place of occurrence. He saw
the dead bodies after coming near to the vehicle at the place of
occurrence. This witness was suggested by the defence that he was
not present at the place of occurrence at the time of occurrence and
he had falsely deposed because he is related to Mukhiyaji. From
the deposition of PW-1, it is evident that he is a chance witness
who claims his presence at a distance of 15-20 feet from the place
of occurrence from where he had seen the accused persons firing
upon Mukhiyaji but from a complete reading of his deposition, it
also appears that in several paragraphs he has stated that the
informant (PW-4), Mantu Kumar (PW-2) and Akhilesh (not
examined) were running towards him and they informed that firing
was taking place on the Mukhiyaji whereafter he claims to have
seen all the five accused persons fleeing away. From paragraph '3'
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
of his deposition, it is evident that he was told about the firing
taking place on Mukhiyaji and then he had seen five accused
persons fleeing away. To this Court, it appears that PW-1 being
related to the deceased is not an eye witness of the occurrence and
he would fall in the category of neither wholly unreliable witness.
43. The another chance witness in this case is Anjani
Kumar (PW-3). He has deposed in his examination-in-chief on the
line of Rajeev Ranjan Prasad (PW-1). He claims to have seen that
Shravan Yadav, Dinesh Yadav, Kamlesh Yadav were firing from
pistol upon Mukhiyaji in the Bolero. This witness has further
stated that he saw that from the left side of the vehicle, Ashok
Prasad got down and started fleeing away then Dharamveer Yadav
and Sukesh Yadav fired upon him from their pistol. He has stated
that from the right side Ashwani, Mantu and Akhilesh Kumar got
down from the Bolero vehicle and ran towards him, they said
Mukhiyaji has been shot at. Thereafter, this witness claims that he
had seen the accused persons fleeing away by Bolero and
motorcycle. After they left, this witness went near the Bolero and
saw that Ashok Prasad was lying dead on the left side of the road
and inside Bolero Mukhiyaji had fallen dead on the left side of the
seat. This witness identified his signature on the fardbeyan as a
witness which has been marked Exhibit '1/2'. He has stated that
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
after recording of fardbeyan, inquest reports were prepared by
police and thereafter the dead bodies were taken away for
postmortem. In his examination-in-chief, in paragraph '6' this
witness has stated that about two unknown persons he came to
know later on that one Kamlesh Yadav of village Manikpur,
Harnaut and another Shailesh Yadav of village Malbigha were
there. He claimed that if both accused could have been present
today then he would have identified them.
In cross-examination on behalf of Shravan Yadav, this witness
has stated that Shivendra Mukhiya is from his village and in
relationship he would be his brother. He is on visiting term with
him. In paragraph '12' of his deposition he was suggested by
defence that Mukhiyaji had a land dispute with Surendra Mahto.
This witness has denied this suggestion. He has stated that
Surendra Mahto is his own uncle. He also denied the suggestion
that Mukhiyaji had any land dispute with Rameshwar Paswan.
This witness was suggested by defence that because Shravan
Yadav had contested election against Shivendra Mukhiya,
therefore he has been falsely implicated in this case. He has
admitted in paragraph '15' of his deposition that except Akhilesh,
all other witnesses are from his caste and of his village only.
Akhilesh is of another village which is in the boundary of village
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
Belsar and it is at a distance of 2 km. This witness denied the
suggestion of the defence that Akhilesh was not driver of the
deceased Mukhiya and he has been made driver only for purpose
of giving evidence in this case.
44. PW-3 has stated that within 20-25 minutes of the
occurrence police had arrived at the place of occurrence and had
gone taking away the dead bodies for postmortem after about 3-3.5
hours. He did not take care as to whether the family members of
the deceased were examined by police during this period or not. In
paragraph '24' of his deposition, he has stated that his statement
was recorded by police on the next date of the occurrence and after
his statement was recorded, the statement of Akhilesh driver was
recorded. It is for this reason, the defence suggested to this witness
that on the date of occurrence, neither he nor Akhilesh driver were
there at the place of occurrence and he had put his signature after
the recording of his statement. This witness denied the
suggestions. In paragraph '37' of his deposition, this witness has
stated that while returning with Rajeev Ji (PW-1), on way he had
not met Mantu, Akhilesh or Ashwani Kumar Verma but when he
reached at the place of occurrence then they were coming running
towards him. He claims that he was standing at a distance of 20-25
feet from the vehicle. He has stated that they shouted that
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
Mukhiyaji has been shot at. In paragraph '38' he has stated that he
was afraid, therefore he kept standing and had not fled away. After
criminals had gone then he came near the vehicle and saw the
deceased persons. From paragraph '38' of his deposition it does
not appear that he visited the place of occurrence with PW-1, PW-
2 and PW-4. In paragraph '43' this witness states that he could not
see whether the vehicle of Mukhiyaji had suffered any damage. He
has further stated that when he reached near the vehicle, at that
time in the vehicle except the dead body of Mukhiyaji nobody was
there. In paragraph '50' of his deposition he has stated the name of
his MLA and the party to which he is attached but this witness
would not say that in which party he is. The defence suggested to
this witness that Shravan Yadav has been falsely implicated at the
instance of the MLA, Minister because he had not given him vote.
This witness denied this suggestion.
45. In his cross-examination on behalf of other accused
persons, this witness has stated that all the three accused persons
namely Kamlesh, Sukesh and Dharamveer are from village
Malbigha and he had come to know this during Panchayat Election
from the people. They were not candidate for any post. They were
working against Mukhiyaji during election. He cannot say the
motorcycle number of Rajeev. In paragraph '56' of his deposition,
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
he has stated that he had not given any information to police and
on whose information police had arrived is not known to him till
date. He had also not given any information to the family members
of Mukhiyaji and Ashok and he cannot say whether Rajeev had
given information to them or not. He was not aware that on whose
information the family members of Ashok and Mukhiyaji reached
to the place of occurrence.
46. From the deposition of PW-3 in paragraph '57' of his
cross-examination it appears to this Court that even though he
claims to be present with Rajeev (PW-1) and was seeing the
occurrence with him and thereafter he remained with him till the
police arrived and took away the dead bodies for postmortem, this
witness shows his unawareness as to whether Rajeev had given
information to the family members of Mukhiyaji and Ashok, he
remained unaware as to who among the family members of the
deceased Mukhiyaji was examined by the I.O. at the place of
occurrence. He also shown unawareness about the condition of the
vehicle. His statement that he cannot say whether the vehicle had
suffered any damage, only shows that he had not gone to the place
of occurrence and that is the reason for all thee evasive replies.
This cannot be said to be a natural conduct of a witness who
claims himself a co-villager of Mukhiyaji. This Court would notice
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
that neither the informant nor PW-1, PW-2 or PW-3 had given any
information regarding the occurrence to the police station and
despite the claim of PW-1 that he was on his motorcycle, he did
not go to the police station to give information. He could have
reached police station within 3-5 minutes from the place of
occurrence but he did not choose to do so.
47. In paragraph '61' of his deposition, PW-3 has stated
that the goods which he had purchased in Noor Sarai Market prior
to the occurrence were not shown to Darogaji because he had not
asked about it. All the goods were kept in the motorcycle. This
witness has stated that about 100-150 feet south to the railway
crossing there is Noorsarai Hospital. He has stated that after the
firing took place and he reached near Mukhiyaji and Ashok bhaiya
then he did not take them to the hospital. At the time of
occurrence, this witness was in the southern side of the vehicle of
Mukhiyaji and the face of the vehicle of Mukhiyaji was towards
northern direction. He had seen Mukhiyaji fallen in the left side in
the vehicle. This witness was suggested by the defence that at the
time of occurrence Kamlesh Yadav was not at the place of
occurrence rather he was engaged in panchayati in village
Bhaganbigha where the Officer-in-Charge and Chowkidar were
also present. He was further suggested that accused Dharamveer
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
Kumar was studying in Biharsharif and Sukesh Kumar was
working in a private firm in the State of Haryana.
48. This Court finds that in paragraph '64' of his
deposition, the defence had asked a very important question as to
whether PW-3 had taken away Mukhiyaji and Ashok to the
hospital. It is important to note that PW-1, PW-2, PW-3 and PW-4
all are either closely related family members of the deceased
Mukhiyaji or co-villagers having good relationship with
Mukhiyaji, they claimed themselves eyewitnesses of the
occurrence but they did not make any effort to take Mukhiyaji and
Ashok to Noorsarai Hospital which are at a distance of 100-150
feet.
Evidence of the Doctor (PW-5)
49. Dr. Kamlesh Thakur (PW-5) was posted at Sadar
Hospital, Biharsharif as Medical Officer. He had conducted the
autopsy on the dead body of Shivendra Prasad who was brought to
the hospital on 30.11.2016 at 3:10 PM by the Chowkidar 2/2
Bikash Kumar (not examined). On examination, he found several
injuries on his body. He has proved the injury report and the
postmortem report which has been marked Exhibit '4' with
objection on the name of Data Operator Smita Prakash who is said
to have typed the postmortem report. On the same day PW-5 had
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
conducted autopsy on the dead body of Ashok Kumar. The injuries
found on the body of Shivendra Prasad and the other relevant
aspects noticed by the doctor which he has stated in his deposition
are as under:-
"2. On examination- Rigor Mortis absent in all four
limbs.
Ante mortem injury
(i) wound of entry - lacerated wound on Rt. Side of
face of side ½'' x ½''. Margin inverted in charred.
Wound of exit- lacerated wound of left occipital region
size 2'' x 1'' margin inverted
(ii) Wound of entry- lacerated wound of size ½'' x ½''
on lower part of left side of abdomen. Margin everted
and charred. Wound of exit- lacerated wound of Rt.
Side of abdominal region of size 1.5'' x 1''. Bullet
metalic substance found in exit wound at Rt. side of
lower abdomen.
(iii) Wound of entry- lacerated wound on left Side of
iliac region of size ½'' x ½'' . Margin inverted and
charred. Wound of exit- public region everted 1.5'' x
1''.
(iv) Wound of entry- Bullet injury over lt deltoid
region of size ½'' x ½''. Margin inverted & charred.
Wound of exit- lacerated wound on rt side of
claviculer region of size 1'' x 1''. Bullet was found
right side clavicular region. Injury no. 01 & 03 were
communicating with each other.
On dissection :- on dissection blood and blood clot
present under neath the tissue.
Skull- fracture of occipital region cravial cavity
contains blood & blood clot. Brain and its meninges
intact & pale.
Chest - Thoracic cavity normal lungs intact & pale.
Heart empty.
Abdomen- stomach empty.
Urinary bladder- empty.
All other abdominal visera intact & pale.
External genitalia normal.
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
3. cause of death:- In my opinion cause of death is due
to haemmorhage & shock produced by abode noted
injuries cause by fire arm.
Time elapse since death within 12 hrs.
4. Above mentioned injuries were/are sufficient for
cause of death"
The injuries on the body of Ashok Prasad and other aspects of
the examination conducted by PW-5 are as under:-
"On examination - Rigor morties absent in all four limbs.
Ante mortem injuries wound of entry - lacerated wound
on Rt. Side of chest maxillary region of size ½'' x ½''
Margin inverted & charred. Wound of exit- lacerated
wound on left Chest wall of size ½'' x ½'' Margin
everted. Wound of entry wound of entry- lacerated wound
of size ½'' x ½'' on Rt. Abdominal part. Margin inverted
& charred.
On dissection - On dissection blood and blood clot
present under neath tissue.
Skull- skull bone intact. Brain and its meninges intact &
pale.
Chest- Thoracic cavity full of blood. Both lungs ruptured.
Bullet was found on left lumber region below 12 th ribs.
Lateral wall of left side. Heart empty.
Urinary bladder- empty.
All other abdominal viscera intact & pale. External
genitalia normal.
Cause of death :- In my opinion the cause of death due to
haemmorhage and shock produced by above noted
injuries caused by fire arm.
Time elapse since death within 12 hrs. "
50. In his cross-examination, this witness has stated that
on both the postmortem reports there is no mention that they have
been typed by Data Operator Smita Prakash on his direction. Name
of Data Operator is not mentioned on the postmortem report and
there is no endorsement to this effect. This witness has stated in
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
paragraph '15' of his deposition that earlier he was posted in
Blocks and he had no experience of conducting postmortem. This
postmortem was his first act of conducting postmortem. He was
not aware that according to the 'Modi Book' that there may be a
difference of six hours in summer and winter season in the matter
of presence and vanishing of rigor mortis. He has stated that the
time of death is written as 1-6 hours, 6-12 hours, 12-18 hours and
18-24 hours. If 12 hours is written it means between 12-18 hours
but it would depend on the evidence. In paragraph '23' of his
deposition, he has stated that on the body of Shivendra the first
three injuries are communicated to each injury, in the fourth injury
he had not mentioned wound of exit which is a mistake. He has
stated in paragraph '19' that all the four injuries were caused from
a distance of 3-10 feet. In paragraph '22' he has stated that the first
injury found on the body of Shivendra was caused from the right
side, the second injury which is on the lower part of left side of
stomach may be caused from the left side or from the side. He had
not mentioned the size of the bullet which was found in the body.
He has stated that the stomach of the deceased was empty and the
urinary bladder was also empty.
51. Regarding the injuries caused to Ashok, this doctor
had stated that his injuries were also caused from a distance of 3-
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
10 feet. His injury is on the right side of the chest and he has been
shot at from the right side. Wound of exit and wound of injury are
of the same size. He was shot at from the point blank range. His
stomach and urinary bladder were also empty. In paragraph '29' of
his deposition, this witness has stated that he cannot say as to
which kind of firearm was used in this occurrence.
52. In his cross-examination on behalf of Dharamveer
Kumar and Kamlesh Yadav, this witness has said that he cannot
say about the dress of the deceased. He has stated that if somebody
is wearing a cloth and he is shot at, there would be a corresponding
mark near the same and the cloth would be charring. He had not
mentioned anything about the marks present on the cloths of the
deceased because prior to conducting postmortem, the cloths are
taken off from the body and it is handed over to the person who
brought the dead body.
53. From the deposition of doctor (PW-5) it is evident
that he had no experience of conducting postmortem. This was his
first case, however, he remained firm in his statement that injury
no.1 upon Shivendra Mukhiya was caused from the right side and
rigor mortis was absent. According to him, there would be a
difference of two hours in appearance and vanishing of rigor
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
mortis during summer and winter season. He had read Reddy's
book.
Evidence of I.O. (PW-6)
54. Shashi Ranjan (PW-6) is the Investigating Officer of
this case. He has stated in his examination-in-chief that at about
10:00 AM he received an information on his official mobile number
that some criminals have shot dead one person. He entered the
information in the Station Diary of the police station, registered
Sanha and left with Sub-Inspector of Police namely Rameshwar
Prasad, Kamlesh Keshav Singh and armed forces to the place of
occurrence. He has stated that he recorded the fardbeyan of
Ashwani Kumar Verma (PW-4) at the place of occurrence. He has
identified his writing and his signature which were earlier marked
as Exhibit '1' and '1/2' respectively. This witness has stated that he
had prepared the inquest report of Shivendra Prasad. In this regard,
it is important to note that on 28.02.2018 prosecution filed an
application saying that the postmortem report and inquest reports
are lying in the police station, those were not on record, therefore,
these documents be called for from Noorsarai Police Station. This
application was allowed but the document did not come as it
appears that on 10.04.2018 again an application was filed to call for
carbon copies of the inquest reports from Sadar Hospital,
Biharsharif, which was allowed. Later on inquest report (xerox
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
copy) was received from Deputy Superintendent, Sadar Hospital,
Biharsharif, Nalanda vide Letter No. 258 dated 25.04.2018. The
Deputy Superintendent who wrote the letter has not been examined
in course of trial.
55. PW-6 has stated that the inquest report has been
prepared by Police Sub-Inspector Ramji Prasad and he has put his
signature thereon. In his examination-in-chief, he has not stated
that Ramji Prasad was accompanying him to the place of
occurrence. He has taken name of two S.Is. who were with him.
On his identification, it has been marked Exhibit '5'. He has
identified the signature of the inquest report witnesses namely
Narendra Prasad and Birendra Prasad which have been marked
Exhibit '5/1' and '5/2' respectively with objection. Regarding the
second inquest report of Ashok Kumar, he has stated that the same
has been prepared through carbon process. It was in his
handwriting and signature. At his instance, it has been marked
Exhibit '6'. He also identified signature of Narendra Prasad Sinha
and Birendra Prasad, the two inquest report witnesses which have
been marked Exhibit '6/1' and '6/2' respectively.
56. In paragraph '12' of his deposition, PW-6 has given
the description of the place of occurrence and the circumstances
which he found after arriving at the place of occurrence. He has
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
stated that one dead body was found on the front-left seat of
Bolero and the second dead body was found on the road. At the
place of occurrence, he found four empty cartridges and two
pellets. One pellet was stuck in the gate of the vehicle whereas the
another pellet was lying inside. He had prepared the seizure list
(Exhibit '3'). He had also found some blood near the dead body of
Ashok Kumar and also inside the vehicle and on the seat. The
boundary of the place of occurrence has been described as under:-
East - Near Sarai Chandi Pakki Road;
West - Noor Sarai Pakki Road and Railway line at a
distance of 50 feet;
North - Parti land of Railway; and
South - Old Noor Sarai High School.
57. PW-6 has identified seizure list and the signature of
the seizure list witnesses namely Raj Kishore Prasad and Birendra
Prasad which have been marked Exhibit '3', '3/1' and '3/2'
respectively. He has stated that he had taken restatement of
Ashwani Kumar Verma, he had recorded statement of Mantu
Kumar and Rajeev Ranjan Prasad. In paragraph '12' of the case
diary, he had recorded that he had searched for the other witnesses
for recording of their statement but they did not appear. This
statement of PW-6 in paragraph '16' of his deposition is to be
considered keeping in view the suggestion of the defence to PW-3
that his statement was recorded by police on the next day of the
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
occurrence and his signature was obtained on the fardbeyan later
on. It is evident that even in his examination-in-chief, PW-6 has
not stated that the witnesses to the fardbeyan had put their
signature on the fardbeyan in his presence.
58. In paragraph '22' of his deposition, PW-6 has stated
that out of five named accused persons of the FIR, regarding the
involvement of four accused namely Kamlesh Yadav, Sukesh
Yadav, Dharamveer Kumar and Dinesh Yadav, in the light of the
supervision note of the senior police officers and the confessional
statement of the accused persons, they were found innocent and
final form was submitted and in this regard entry has been made in
paragraph '135' of the case diary. In paragraph '24' this witness
has stated that he had obtained the xerox copy of the confessional
statement of the accused persons who were arrested in Harnaut
P.S. Case No. 337 of 2016 from which he found that the deceased
in Case No. 284 of 2016 i.e. Mukhiyaji and his brother were killed
by accused Ranjit Kumar and his companions. In this regard, he
has recorded in paragraph '117' of the case diary. In paragraph '25'
he has stated that in the light of the confessional statement of the
accused persons in Harnaut PS Case No. 337 of 2016, charge-sheet
was filed against accused Ranjit Kumar Yadav, Kundan Kumar,
Kartik Giri, Satish Kumar Singh, Ajit Kumar Singh, Ravi Kumar
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
Tanti, Adhir Yadav, Ravi Kumar Mali and Shravan Yadav. He has
stated that against Shravan Yadav, in course of investigation other
materials were also available. In course of his cross-examination,
on behalf of Shravan Yadav, attention of PW-6 was drawn towards
the fact that on the fardbeyan there is no mention of letter number
of dispatch from the place of occurrence. Attention of PW-6 was
also drawn towards the fact that in paragraph '189' he had
mentioned that investigation has been kept pending against
accused Shailesh Yadav, Kamlesh Yadav, son of Rameshwar
Yadav, Raju Thakur, Shankar Yadav, Pappu Yadav, Birendra
Prasad, Surendra Prasad, Bipin Kumar, Raju Gope, ex-MLC,
Shravan Yadav, bhagina of Raju Gope and Dinesh Yadav so this
witness was asked that what happened against them in course of
investigation. PW-6 said that he cannot say about it because he had
been transferred.
59. In paragraph '33' of his deposition, PW-6 has stated
that he cannot say as to from which number and who had made the
call. He has stated that after reaching to the place of occurrence he
had first prepared the inquest report, one was prepared by Ramji
Prasad and another was by him. He has admitted that the date and
time are not mentioned in the inquest report. He has stated that in
the inquest report of Ashok Kumar which he had prepared, Noor
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
Sarai PS and date 30.11.2016, as also time is written but it is not
legible. It seems to be 14 hours. In the inquest report of Shivendra
Kumar, police case number and time are not mentioned in the
upper column but it is mentioned in the last column. PW-6 has
admitted that he had not recorded statement of the inquest report
witnesses and the seizure list witnesses. He has admitted in
paragraph '38' that earlier in his deposition he had stated that he
had first recorded the fardbeyan and thereafter prepared the inquest
report but he has now stated (today) that he had prepared the
inquest report first and then recorded the fardbeyan. This witness
has stated that the statement which he made at the time of his
examination-in-chief is correct.
60. In paragraph '46' of his deposition, this witness has
stated that he had not sent the empty cartridges and pellets for
matching with the seized gun/pistol in Harnaut P.S. Case No. 337
of 2016. He has admitted in paragraph '48' that he had recorded
the statement of Anjani Kumar (PW-3) in village Belsar but he had
not mentioned the time of recording of his statement. He has stated
that he was present at the time of recording of fardbeyan at the
place of occurrence but because he was in bereaved condition,
therefore his statement could not be recorded at that time. The
defence suggested him that Anjani Kumar was not present at the
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
time of recording of the fardbeyan at the place of occurrence,
therefore, his statement was not recorded and only later on
explanation has been recorded in paragraph '24' of the case diary
to explain the delay. PW-6 has stated that he had recorded the
statement of the driver Akhilesh Kumar on the next day of the
occurrence in village Belsar, however, regarding the reason for his
not recording statement of the driver at the place of occurrence, no
explanation has come from PW-6.
In paragraph '54' he has recorded that he had not attached the
photographs of the place of occurrence with the case diary but he
can produce the same in the court. He had done the photography
from his mobile. No videography was done. This witness has
denied the suggestion that the inquest report, seizure list and other
papers were prepared at the police station after calling the family
members at the police station and their signatures were obtained.
He has stated that he had not mentioned in the case diary that the
vehicle has been got released by the owner of the vehicle. He had
not gone to the medical shop of Rajeev Ranjan (PW-1) and had not
conducted any investigation on the point as to whether he had gone
to his medical shop on the date of occurrence or not. He had not
investigated the staff of the Jagdamba Medical Store regarding the
visit of Rajeev Ranjan (PW-1). He did not know that Rajeev
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
Ranjan (PW-1) is a teacher in Bhakhri Medical School. He had not
conducted any investigation to know that at the time of occurrence
Rajeev Ranjan (PW-1) was in his school or not. He had not gone to
school because he was not aware that PW-1 was a teacher in
Bhakhri School at the time of occurrence. He had also not seen the
papers of the motorcycle which Rajeev Ranjan (PW-1) was using
at the time of occurrence. He has admitted that Mantu Kumar,
Anjani Kumar, Raj Kishore Prasad, Pramod Kumar, Narendra and
Birendra are the family members of the deceased. In paragraph
'71', '72' and '73', PW-6 has stated that besides the statement of
family members of the deceased, he had recorded statement of
other persons which are in paragraph '140', '141' and '142' of the
case diary. He has stated that he had not tried to know by visiting
village Belsar as to whether Mukhiyaji had any land dispute with
any of the villagers. In paragraph '75', he has stated that in course
of investigation, he had not taken mobile number of any of the
witnesses and he had not tried to obtain their call details and tower
locations. The defence suggested that he had not taken out the call
detail reports and the tower location because if he would have
obtained those information, then the location of the witnesses
would have come as that of village Belsar and Bhakri or other
places. This witness denied the suggestion.
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
61. In paragraph '77', PW-6 has stated that witness
Rajeev Ranjan (PW-1) has not stated before him that Ashwani
Kumar and Mantu Kumar had told him that firing was taking place
on Mukhiyaji. Rajeev Ranjan had said about fleeing away of the
accused by motorcycle. He had not said that Ashok Kumar had got
down from the left side and was trying to flee away when accused
Dharamveer had fired upon him. He had not enquired during
investigation that at the time of occurrence, Dharamveer Prasad
was studying in Biharsharif and he had also not conducted any
investigation that at the time of occurrence, Sukesh Kumar was
engaged in a private job in Haryana. He had also not enquired
about the land dispute between the deceased Shivendra Prasad and
his villager Surendra Mahto or with Kameshwar Paswan. He had
also not taken statement of the staff Pintu Kumar of Jagdamba
Medical Hall.
62. In paragraph '81' of his deposition, PW-6 has stated
that Mantu Kumar had not told him that the occurrence is of
30.11.2016. He had not said that he had come with driver
Akhilesh. He had only said that his driver was Akhilesh Kumar. He
had not said about overtaking of the vehicle in front of the gate. He
had also not said about the firing on the kanpatti by Shravan Yadav
rather he had said about firing on the cheek. He had not said that in
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
his presence Mukhiyaji had received firearm injury on the left side
of his stomach. He had not said about his fleeing away from the
right side of the vehicle. He had not said that the driver had got
down and fled towards southern side and Ashok bhaiya had fled
towards left side. This witness had not said about suffering of one
firearm injury in the stomach of Ashok and he had not said that he
had run/fled to 20-25 meter and then when he turned around, he
saw Shravan Yadav, Dinesh, Kamlesh Yadav and one another
person by Bolero and Sukesh Yadav, Dharamveer Yadav and
another person who was driving the motorcycle but he had given a
statement in this regard. He had not stated that two persons who
fled were Kamlesh Yadav of village Manikpur, Harnaut and
Shailesh Yadav of village Malbigha, Noor Sarai.
63. In paragraph '82', PW-6 has stated that Anjani
Kumar Verma had not stated that the firing was being done from
the left side of the front seat of Mukhiyaji. He had also not said
that from the Bolero vehicle, Ashok Kumar got down towards the
left side from the middle seat and started fleeing away. PW-6 has
further stated that he had not stated that the witnesses had come
running towards them and said that Mukhiyaji has been shot dead.
This witness had not stated taking the name of the accused persons
and that they were fleeing towards the north side. He had only said
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
"all the accused persons". This witness had not stated about Ashok
Kumar falling on the left side of the road in dead condition. He
had also not stated that Mukhiyaji had fallen in the left side on the
front seat in dead condition. This witness had not stated that when
Ashok bhaiya was fleeing away after getting down from the
vehicle then Sukesh and Dharamveer had shot at him rather he had
said that the Dharamveer and Sukesh had fired on Ashok bhaiya
who was fleeing away. This witness was suggested by defence that
he had knowingly not obtained the call details report of Ashwani
Kumar Verma (PW-4) and that of the deceased Mukhiya Shivendra
Prasad. In paragraph '84' of his deposition this witness was
suggested that in course of investigation name of Shravan Yadav
son of late Kameshwar Yadav, Raju Gope, ex-MLC and his
bhagina Shrawan Yadav @ Teni Yadav of village Brijpur came but
in pressure from the local MLA Shrawan Kumar, Raju Gope, his
bhagina Shrawan Yadav and Shrawan @ Teni Yadav were left out
and the present accused Shrawan Yadav, son of late Kameshwar
Yadav has been falsely implicated.
64. In course of his further cross-examination on behalf
of Ravi Kumar Tanti, Ravi Kumar Mali, Ajit Kumar, Satish
Kumar, Kundan Kumar and Ranjeet, PW-6 has stated that he had
not given any application in court for recording of the statement of
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
the accused whose names have transpired in the confessional
statements in Harnaut P.S. Case No.337 of 2016, under Section
164 Cr.P.C. The name of non-FIR accused came on the basis of
confessional statements, their names were not disclosed by the
witnesses and police had submitted a charge-sheet only on the
basis of the confessional statements. It is for this reason the
defence on behalf of these accused suggested to PW-6 that he had
fabricated the case against them without any evidence and filed the
charge-sheet only on the basis of the confessional statements.
65. In his cross-examination on behalf of Dharamveer,
Sukesh and Kamlesh Yadav, son of late Kapil Yadav, PW-6 has
stated that he had not mentioned the mobile number from which he
had received information of the occurrence in the police station, in
the case diary. He is aware that the mobile number is shown on the
phone but he had not tried to find out the person who had given the
information. He has stated that when he asked the person giving
the information of the occurrence over telephone, he had not
disclosed the name of the assailants and he only said that he was
going by bus. He has stated that he had recorded Sanha entry vide
SD no.753/16 in the station diary.
In paragraph '89' of his deposition, he has stated that he had
got information that near Noorsarai High School criminals had
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
killed one person and one person has suffered serious injury by fire
arm. He has stated that on the date of occurrence, there were some
light fogs. The defence suggested that on that day there were dense
fogs which this witness denied. In paragraph '94', he has stated
that he had not enquired from the villagers of Shivendra Mukhiya
that on the date of occurrence he had visited Noorsarai market with
his relatives. He had not done any investigation that how many of
them were keeping mobile. He has also stated in paragraph '95'
that he had not seized the blood which had fallen near Bolero
vehicle and near the dead body of Ashok Kumar. He had not
mentioned in the case diary about the findings of 'fish' either
inside the vehicle or nearby the vehicle. He had also not mentioned
that 'fish' were thrown away because they had perished. In
paragraph '96', he has stated to have recorded in paragraph '12'
that he had searched for other witnesses to record their statements
but nobody met him. In paragraph '98' of his deposition, he has
stated that from the statements of Anjani Kumar (PW-3)
involvement of Shrawan Kumar with Sanjay Kumar in the
occurrence has been mentioned and in course of investigation
Sanjay Kumar was arrested.
66. In paragraph '99', he has stated that the seized
empty cartridges and pellet were sent to the FSL for their
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
examination but no report had been received till he was there. He
had not sent them to sergeant major. He had also not prepared the
map of the place of occurrence in his own hand. The private diary
in which he had recorded the facts in course of investigation has
not been made part of the case diary and the said diary was not
available with him. It is for this reason, the defence suggested that
in order to help the informant the said private diary has not been
made part of the main diary so that the main diary may be
prepared mentioning exaggerated and fabricated facts. In
paragraph '104' of his deposition, PW-6 has stated that in course
of investigation he had received the call detail report and tower
location of the mobile phone of Kamlesh Yadav and Dharmaveer
Yadav from which he came to know that at the time of occurrence
the tower location of Kamlesh Yadav, village- Malbigha was in
village Musepur, P.S.-Bhaganbigha and the tower location of
Dharamveer Yadav was Biharsharif. He had also found in course
of investigation that at the time of occurrence or thereafter
Kamlesh Yadav, Dharamveer Yadav, Dinesh Yadav and Sukesh
Yadav had no talk with Shrawan Yadav. He has stated that during
investigation this fact has come to the light that at the time of
occurrence Kamlesh Yadav was involved in resolving a dispute in
village Musepur and he was with sub-inspector of Police Narayan
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
Singh of Bhaganbigha O.P. and Chowkidar Prayag Paswan and
other villagers from 8.00 AM to 3.00 PM. He had recorded the
statement of the witness Narayan Prasad Singh (para '147') and
Prayag Paswan (para 148) in which they have stated about
participation of Kamlesh Yadav in the panchayati between 8.00
AM and 2.00 PM on the date of occurrence. In course of
investigation, he had tried to get information as to the occupation
of Sukesh Yadav but he had not mentioned it in the case diary. He
was not aware that Sukesh Yadav was working in a poultry farm at
Panipat in the State of Haryana. He has stated that he had not
mentioned it in the case diary. In course of investigation, he had
not recorded the statement of accused Kamlesh Yadav,
Dharamveer Yadav and Sukesh Yadav. In paragraph '109' of his
deposition, PW-6 has stated that he had not investigated on the
point as to what work accused Dharamveer Yadav was doing prior
to the occurrence and where was he living because from his
mobile tower location he had found that at the time of occurrence,
Dharamveer Yadav was in Biharsharif.
Statements under Section 313 CrPC
67. In their statement under Section 313 Cr.P.C.,
Kamlesh Yadav has, while denying the incriminating materials
brought to his notice, stated that he was innocent and at the time of
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
occurrence he was in village Musepur, Bhaganbigha with Darogaji
in a panchayati. Sukesh Kumar has also stated in his statement that
at the time and date of occurrence, he was outside the State of
Bihar in Harayan. Dharamveer Yadav has stated that he was in
Sohsarai attending his classes. Sharwan Yadav has taken a plea in
his statement that he was not aware of the occurrence and he has
been falsely implicated under a conspiracy.
Defence evidence
68. The defence has produced Rudal Kumar (DW-1)
who has deposed about the presence of Kamlesh Yadav in village
Musepur at the time and on the date of occurrence. He has brought
on record the panchayati paper on which he had put his signature
which has been marked Exhibit- 'X' and the signature of Kamlesh
Yadav has been marked Exhibit- 'X/1'. This witness is of village-
Musepur and he has stated in his cross-examination that he is
cousin brother-in-law of Kamlesh. He has stated that on the
panchayati paper there is no signature of Daroga Narayan Prasad
and Chowkidar Prayag Paswan and on the panchayati paper no
time is mentioned. This witness was suggested by the prosecution
that he had produced a fabricated panchayati paper only to save
Kamlesh.
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
69. Sri Narayan Prasad Singh (DW-2) was posted as
Sub-Inspector of Police in Bhaganbigha O.P. on 30.11.2016. He
has stated that he reached village Musepur at 9.15 AM with
chowkidar Prayag Paswan in connection with a land dispute
between Ravi Kumar @ Laddu and Suresh Yadav. He has stated
that Kamlesh Yadav was present in village Musepur at the time of
panchayati. He has stated that Kamlesh was present there till 2.30
PM when he left. He had made statement before the I.O. In course
of his cross-examination, he has stated that prior to going to
village Musepur for resolving the land dispute, he had not made
any Sanha entry in the station diary. He was not aware whether the
S.H.O. had made any sanha entry in this connection or not. He was
also not aware that for resolving the dispute any of the parties had
made any application or not. Prior to going there, he had not given
any information to Mukhiya, Sarpanch or Panch of Musepur
village. He could not know that with regard to which land there
was a dispute. He had also not seen the document of land. In his
cross-examination, he has stated that before I.O. he had not made
any statement that he had left police station at 9 O' clock for
village Musepur. He had also not said that he had reached village
Musepur at 9.15 AM. He knew Kamlesh Yadav for about six
months prior to the occurrence when he visited police station in
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
connection with one case of maar-pit. He was suggested by the
prosecution that he had a friendship with Kamlesh Yadav and for
that reason he was falsely deposing in this case.
70. Ram Pravesh Yadav (DW-3) has deposed on behalf
of the accused Sukesh Prasad. He has stated that he was working
in the poultry farm at Panipat for last 7 years. With him his co-
villager Sukesh Prasad was also working and on 30.11.2016
Sukesh was working with him. In his cross-examination, he has
stated that Sukesh Kumar is his nephew in relation and he has
brought him in court for giving evidence.
71. Raushan Kumar (DW-4) has deposed on behalf of
the accused Dharamveer Yadav. He is his co-villager. This witness
has stated that both of them were studying in a coaching in
Biharsharif. The name of that coaching is Shivam Computer
Classes which is in Sohsarai Mohalla. He has stated that on
30.11.2016 Dharamveer was attending the classes with him from
8.00 AM to 12.00 Noon. He has stated that the I-card is made but
he was not having the I-card. He has stated that no attendance is
made of the students in the class. He has stated that his roll number
is 60 but he is not aware of the roll number of Dharamveer. He has
stated that he had not given information to the police either orally
or in writing that Dharamveer was studying with him on
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
30.11.2016 in the coaching. He was brought for evidence by
Dharamveer.
72. MeghanYadav @ Manish Yadav (DW-5) has stated
that on 30.11.2016 he had participated in some panchayati in
village Musepur. Panchayati had taken place between him and his
Mamera bhai Bichha @ Devendra. He has stated about presence of
Kamlesh Yadav, Jamadar of Bhaganbigha O.P. and chowkidar
Prayag Paswan. He knew Kamlesh Yadav from that Panchayati.
He was brought by son of Kamlesh Yadav for giving evidence. He
had not given any information to police or any official that
Kamlesh Yadav was not involved in the occurrence. The
prosecution suggested him that no panchayati had taken place in
village Musepur relating to any land and Kamlesh Yadav was
involved in commission of crime.
Consideration
73. The basic principle of the criminal law justice is that
the prosecution must stand on its' own leg.
On close scrutiny of the evidence of the prosecution and the
defence witnesses as also the documents marked Exhibits on
behalf of the parties, this Court finds that first and foremost issue
which would arise for consideration is as to what extent the
prosecution witnesses, namely, PW-1, PW-2, PW-3 and PW-4 may
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
be believed as eye witnesses of the occurrence. With regard to
their presence at the place of occurrence on the date and time of
occurrence, no scientific investigation has been done by the I.O.
(PW-6). He had not even taken the mobile number(s) of the
witnesses and the deceased in course of investigation. He did not try
to obtain the call detail reports and mobile tower location of the
witnesses. But, for this fault alone on the part of the I.O., the
presence of the prosecution witnesses on the date and time of
occurrence cannot be disbelieved. This Court will, however, keep it
in mind and shall consider this aspect together with their testimony.
74. This Court further finds that the conduct of the
informant (PW-4) and that of PW-1 who were admittedly having
mobile phones in their hand but did not make a call to the police
station to inform about the occurrence is not a natural conduct. The
I.O. has stated that he had got information with regard to the
occurrence by a bus passenger at 10:00 AM on his official mobile
whereafter he reached at the place of occurrence. Police arrived at
the place of occurrence within 20-25 minutes. One more fact
which would not seem natural conduct of PW-1 is that he was on a
motorcycle but he did not go to the police station to report the
occurrence, the police station was at a distance of 1 ½ kilometer
and with the motorcycle he could have reached there hardly within
three minutes @ 30 km/per hour only. It is for these reasons the
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
defence has tried to create a doubt over the claim of the witnesses
that they are eye witnesses to the occurrence.
75. Further conduct of these witnesses may be noticed
from the fact that Noorsarai Hospital was at a distance of only
100-150 feet from the place of occurrence but these witnesses did
not take any effort to take the victim to the hospital.
76. The informant (PW-4) and Mantu Kumar (PW-2)
have stated that they were sitting inside the Bolero vehicle with
Shivendra Mukhiya and Ashok Prasad. The vehicle was being
driven by Akhilesh but Akhilesh driver has not been examined in
course of trial. In this connection, the order dated 19.02.2018
passed by the learned trial court would show that the prosecution
filed an application stating that 8 (eight) charge-sheet witnesses
have been won over by the accused. Prosecution wanted to
examine Akhilesh driver as an eye-witness but he has also been
won over. The learned trial court issued summons for appearance
of Akhilesh but thereafter it is not known as to why his presence
could not be secured. So far as Officer-in-Charge of Bhaganbigha
O.P. and Chaukidar are concerned, though they were made charge-
sheet witnesses but it is evident from the deposition of the I.O. that
during investigation also they had supported the plea of Kamlesh
Yadav. So far as PW-2 and PW-4 are concerned, they claim to have
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
seen the occurrence which continued for 3-4 minutes in which
Shivendra Mukhiya had been killed by Shrawan Yadav, Dinesh
Yadav and Kamlesh Yadav. They have stated that the accused
persons were in the left side of the vehicle and these two witnesses
along with the driver Akhilesh had got down from the right side of
the vehicle and they started fleeing away. They have stated that
they got down from the vehicle and started fleeing away only after
Shivendra Mukhiya had been shot at by the accused persons. In
this connection, even fardbeyan of PW-4 says so. It has come in
evidence that the I.O. had found one pellet stuck on the right side
middle gate of the vehicle and the doctor (PW-5) has explained the
right side injury of body of Shivendra Mukhiya saying that he was
fired at that part of his body from the right side. If this part of the
evidence is taken into consideration, it would appear that the
criminals had after overtaking/intercepting the vehicle from the
north side of the vehicle of the deceased covered the persons
inside the vehicle from both sides i.e. right and left side and the
firing had taken place from right side as well as the left side. One
pellet has been found inside near middle seat. The prosecution
witnesses PW-2 and PW-4, who were inside the vehicle, have
stated that criminals had not fired upon them. This Court finds that
the fact that the dead body of Ashok was lying on the left side of
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
the road only shows that when firing took place from right side he
tried to flee away after opening the left side gate, he was shot at
by the criminals, he fell down on the road and died. In these
circumstances, it seems highly improbable that PW-2 and PW-4
who were inside the vehicle could have got any opportunity to
come down from the vehicle from the right side and flee away
because from the evidences on record it is evident that the
criminals were there from both the sides.
77. As regards the positioning of the vehicle of the
assailants, it has come in evidence that the vehicle of the appellant
and the deceased were not in front of and facing each other. The
vehicle of the assailant had taken over from the right side of the
vehicle of the deceased and had stopped. In this connection, the
statement of PW-1 in paragraph '34' of his deposition says that the
Bolero vehicle from which assailants had come was standing
ahead (north side) at a distance of 1-2 feet from the vehicle of
Mukhiyaji. PW-2 has stated that the vehicle of Mukhiyaji was
standing in the direction of north - south. The front side was
towards north and the backside was towards south. In his
statement in paragraph '63', PW-2 has stated that Bolero which
had overtaken the vehicle of Mukhiyaji was standing north to the
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
vehicle of Mukhiyaji but both the vehicles were not facing each
other.
Contrary to this claim of PW-1 and PW-2, the informant (PW-
4) has stated in his examination-in-chief that the Bolero vehicle of
the assailants had overtaken his vehicle and parked in front of his
vehicle. In paragraph '27', PW-4 has once again stated that the
Bolero vehicle stopped in front of his vehicle after overtaking. He,
however, did not remember the vehicle number. From this part of
the evidence of the prosecution witnesses, it is evident that the
Bolero of the victim and that of the accused were not facing each
other, but the vehicle of the assailant had overtaken the vehicle of
the victim from right-side and stopped.
At this place, according to the informant (PW-4), the road is
north - south. If it is so, then like the vehicle of the deceased, the
backside of the vehicle of the assailant would also be towards the
south and in such condition the number plate on the vehicle of the
assailant would be clearly visible upon overtaking of the vehicle,
but none of the prosecution witnesses, particularly those who were
sitting inside the vehicle of the victim, has stated about the vehicle
number of the assailants. Informant (PW-4) was suggested by the
defence that near the place of occurrence, the road is passing in the
direction of east - west but the witness denied this suggestion. He
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
has stated that from the place of occurrence, after moving about 50
yards towards north, in the east side, there is a railway gumti. If
this evidence of the informant is considered with the evidence of
the I.O. (PW-6), it is found that the I.O. has given the description
of the place of occurrence in paragraph '12' of his deposition
wherein he has stated that the place of occurrence is the road
which is Noorsarai - Chandi Main Road in front of Noorsarai Old
High School and this road goes in the direction of east - west.
The boundary of the place of occurrence has been given by the
I.O. according to which in east and west it is Noorsarai - Chandi
Pakki Road, in north there is a parti land of railway and in south
old Noorsarai High School is situated. This Court finds that there
is some difference between the informant and the I.O. with respect
to the direction in which Noorsarai - Chandi Road is passing at the
place of occurrence but that seems to be a minor discrepancy
because the informant has also stated that after 50 yards from the
place of occurrence, in the east side there is a railway gumti. It is,
however, important to note that the I.O. has neither conducted any
videography of the place of occurrence nor he brought on record
photographs which he claimed to have taken from his mobile.
78. The I.O. had inspected the vehicle at the place of
occurrence and had found that one pellet had stuck into the gate of
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
the vehicle of the victim and the second pellet was inside the
vehicle. A perusal of the seizure list (Exhibit '3') prepared by the
I.O. (PW-6) would show that one pellet had stuck into the right
side gate of the backseat. The another was found below the middle
seat. Thus, the seizure list (Exhibit '3') clearly shows that firing
had been done from the right side also and it was done aiming the
right side gate of the backseat on which Ashok, PW-2 and PW-4
were said to be sitting. The evidence of the doctor (PW-5) would
show that the deceased had suffered four firearm injuries and the
first wound of entry was lacerated wound on right side of face of
size 1/2" x 1/2" margin inverted and charred. It is with respect to
this injury, the doctor (PW-5) has stated in paragraph '22' of his
deposition that on the body of the deceased Shivendra, the first
injury was caused from the right side, the second injury which is
on the lower part of left side of stomach may be caused from the
left side or from the side. The belief of this Court is strengthened
from the seizure list (Exhibit '3') and the deposition of the doctor
(PW-5) that the assailants having stopped their vehicle after
overtaking the vehicle of the deceased/victim from the right side
came out firing from the right side, they fired on the vehicle which
hit right side gate of the vehicle and then the assailant caused
injury no.1 upon the deceased from the right side. Ashok who was
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
sitting on the middle/back seat tried to save himself by getting
down from left side gate but he was shot at by the criminals from
the left side. Under these circumstances, it is highly improbable
that PW-2 and PW-4 who claimed themselves inside the vehicle of
the victim/deceased could have opened the right side gate of the
vehicle and tried to run away from the right side in presence of the
accused persons.
79. PW-2 and PW-4 have stated that the accused had not
fired upon them which is again improbable because if they had
killed Shivendra Mukhiya and then while Ashok tried to flee away
by opening the left side gate, he was also killed, the assailants
would not have spared PW-2 and PW-4 if they would have tried to
flee away in presence of the accused persons. Four empty
cartridges have been seized from the place of occurrence.
80. This Court further finds that the claim of PW-1, PW-
2, PW-3 and PW-4 that they had seen Sukesh and Dharamveer
coming by motorcycle from the left side of the Bolero vehicle and
then they fired upon Ashok is not believable. It is not the statement
of PW-2 and PW-4 that when they were sitting inside the vehicle
during that 3-4 minutes when Shivendra Mukhiya was fired upon,
simultaneously Ashok tried to flee away from the left side gate and
he was fired at by Sukesh and Dharamveer. The statement of PW-2
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
and PW-4 is that when they started fleeing away from the right
side gate, Sukesh and Dharamveer came from the left side of the
vehicle and fired upon Ashok Prasad. PW-2 and PW-4 were
running at this stage towards the south direction which means
towards the backside of the vehicle. In the opinion of this Court
PW-2 and PW-4 could not have seen while fleeing away from the
right side gate that who had come on motorcycle from the left side
and who had fired upon Ashok Prasad.
81. This Court further finds that PW-1 and PW-3 claim
their presence by chance at a distance of 20-25 feet from the place
of occurrence. They were returning from Noorsarai Market and
were going to their home, therefore they were also going in the
direction of the ill-fated Bolero vehicle. They claimed to have
stopped at a distance of 20-25 feet and saw the occurrence. The
testimony of PW-1 as a chance witness is not believable for the
reason that there is no corroboration at least on the point that they
were seen in the Noorsarai Market by any independent witness on
the date and time of occurrence. The so-called staff namely Pintu
of Jagdamba Medical Hall which is owned by brother of PW-1
was though a chance witness has not been examined. It is not that
Pintu had left the shop of brother of PW-1 but he is among those
eight charge-sheet witnesses who have not been examined by the
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
prosecution saying that they have won over by the accused.
Nobody had seen PW-1 and PW-3 leaving their village on the said
day at 7:00 AM, there is no eyewitness to say that they were seen
in the market, there is no witness to say that PW-3 had made any
purchase in the market. PW-3 had not shown to the I.O. any such
purchased items. In fact, PW-3 was not present at the place of
occurrence when the I.O. searched the witnesses to record their
statements at the place of occurrence. The statement of PW-3 that
he was weeping and was not in a state of mind to make statement
is only an afterthought. He has signed as a witness on the
fardbeyan of PW-4 as a witness, if he was present at the place of
occurrence to sign the fardbeyan submitted by PW-4 to the I.O. at
the place of occurrence itself, there was no reason as to why he
would not be present at the place of occurrence when the I.O. was
in search of the witnesses.
82. It is to be kept in mind that PW-3 could have stated
to the I.O. at the place of occurrence that he was not in a position
to make statement but that circumstance is not proved. In fact, he
was not found at the place of occurrence for making statement. His
statement was recorded by I.O. on the next day by visiting his
village.
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
83. As to the evidence of PW-1 with regard to his
presence at a distance of 20-25 feet from the place of occurrence,
this Court finds that in paragraph '3' of his deposition, he has
stated that Ashwani Kumar, Mantu Kumar and Akhilesh Kumar
were running towards him and they said that firing is taking place
on Mukhiyaji. In paragraph '5' he has stated that after the accused
persons had fled away, then he reached near Bolero and found that
Mukhiyaji Shivendra Prasad had fallen and both the victims were
dead. The conduct of PW-1, PW-2, PW-3 and PW-4 is also found
doubtful from the fact that at a distance of 100-150 feet only,
Noorsarai Hospital was there, these witnesses neither informed
police by telephone nor visited the police station even though PW-
1 was on motorcycle. This cannot be said to be a natural conduct
of a family member and kith and kin of the deceased.
84. This conduct of the prosecution witnesses only
suggest that they had reached the place of occurrence only after
some time when both the victims had already died otherwise they
would not have awaited arrival of police for 20-25 minutes. They
were not even aware whether police had been informed and who
had informed police?
85. PW-1 is a Teacher in Bhakhri School. The date of
occurrence was a working day but he claims that he was on leave
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
that day. He had, however, not informed so to the I.O. during
investigation and had not given any proof of his being on leave on
the date of occurrence. The time of occurrence is his school
teaching hour. The veracity of his statement further becomes
doubtful from the statement of PW-1 in paragraph '36' of his
deposition where he has stated that the motorcycle of the accused
was standing in the right hand side of the Bolero of the accused
persons. On the same point, the informant (PW-4) has stated that
when Ashokji was trying to flee away from the left side gate of the
middle seat then from the left side, three persons came on a
motorcycle and out of them Sukesh Yadav and Dharamveer Yadav
got down who were armed with pistol and both of them fired one
shot each on Ashokji. PW-4 had not said like PW-1 that the
motorcycle was parked on the right side of the Bolero of the
accused persons. PW-2, who also claims himself inside the Bolero
of the victim, has stated that when Ashok bhaiya fled from the left
side, then from left side Sukesh Yadav, Dharamveer Yadav and one
person who was driving motorcycle came and then Sukesh and
Dharamveer fired upon Ashok bhaiya. According to PW-2,
thereafter he fled towards the south direction but PW-4 has stated
in paragraph '33' of his deposition that within 3-4 minutes
occurrence had taken place, he remained sitting inside the vehicle,
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
he talks of firing on Shivendra Mukhiya and after the occurrence
had taken place, he fled from there and then he has stated in
paragraph '34' that when he returned with PW-1 and PW-3 within
2-3 minutes, he found that the accused persons were sitting in the
vehicle and after his return, he found that Ashokji was lying on the
earth in a dead condition. From this statement of PW-4, it is
evident that till the time he was sitting inside the vehicle, Ashokji
had not tried to flee away from the left side gate. According to
PW-4, only after he came back, he found that Ashokji was lying
dead on the earth.
86. It is the case of the prosecution that Akhilesh was
driving the vehicle. Akhilesh was not found at the place of
occurrence when I.O. was searching the witnesses for recording
their statements. Like Anjani Kumar (PW-3), the driver Akhilesh
was also not found. The I.O. went to their village on the next day
only where their statements were recorded. Still, the driver has not
been examined in course of trial. He is a chargesheet witness in
this case. The prosecution got a summon issued to him by the
learned trial court after saying that he has been won over by the
accused persons. He is also said to be an eyewitness of the
occurrence, still he has not been examined by the prosecution
would only go against the prosecution case.
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
87. Dinesh Yadav, who is said to be one of the assailants
of the deceased Shivendra Mukhiya, was not chargesheeted in
Charge-sheet No. 18 of 2017. The investigation was kept pending
against eleven accused and more other accused whose name had
transpired in course of the investigation of the case. The learned
trial court has found in the impugned judgment that against eight
accused persons prosecution had failed to prove charges. In fact,
I.O. (PW-6) has stated in his evidence that they were
chargesheeted on the basis of the confessional statements of the
accused. There was no other evidence against them. This only
strengthens the case of the defence that in this case there was some
political pressure either to save or to implicate one or another set
of accused.
88. The prosecution case is that Shrawan Yadav had lost
the Mukhiya election and for that reason he was inimical to
Shivendra Mukhiya, however, there is no independent witness on
the record or any Sanha of Shivendra Mukhiya saying that
Shrawan Yadav had ever threatened Shivendra Mukhiya to kill
him. If Shivendra Mukhiya would have any threat to his life as per
his own perception, he would have definitely gone outside only
with adequate security arrangements. Some of the prosecution
witnesses who are only family members of the deceased Shivendra
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
Mukhiya have stated that Shrawan Yadav had threatened that
within six months Shivendra would be killed and there would be a
fresh selection of Mukhiya but these witnesses have not stated that
such threat was given to Shivendra Mukhiya in their presence.
89. This Court further finds that the fardbeyan of the
informant was recorded on 30.11.2016 at 11:00 AM and the formal
FIR was registered on the same day at 12:45 PM. Shashi Ranjan
(PW-6) has endorsed the fardbeyan vide Exhibit '1/5' (the
forwarding to SHO Noorsarai P.S.) for instituting a case. He had
recorded the fardbeyan at Camp-PO (Place of Occurrence). The
fardbeyan was received in the police station and the same was
registered by Ramashankar (not examined). His endorsement
showing receiving and registration of the FIR is Exhibit '1/6'. The
column showing the date and dispatch of FIR to the jurisdictional
court as required to be filled up under subsection (1) of Section
157 CrPC has not been filled up, however, the FIR has been seen
by learned SDJM, Biharsharif on 01.12.2016. The inquest reports
were not found on record of the trial court and even after order
dated 28.02.2018 when those documents did not come from police
station, summon was sent to Sadar Hospital to send inquest reports
and postmortem report. It is evident that the FIR was not sent to
the jurisdictional court on the same day even though it was shown
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
registered at 12:45 PM. Complete 24 hours has been availed by the
I.O. who is also the SHO of Noorsarai Police Station in sending
the FIR to the jurisdictional court. This has to be noticed with the
fact that while the I.O. claims to have prepared the inquest report
of Ashok Prasad (Exhibit '6') in his own pen on 30.11.2016 at 14
hours (2:00 PM), he did not prepare the inquest report of
Shivendra Prasad (Exhibit '5'). Ramji Prasad S.I. who prepared
inquest of Shivendra was not accompanying I.O. when I.O. left the
police station for the place of occurrence. Ramji Prasad has not
been examined in trial. In column '1' of Exhibit '5' there is no
mention of the case number, date and time of examination of the
dead bodies. Exhibit '5' which has been prepared by Ramji Prasad,
Sub-Inspector of Police whose signature has been proved by the
I.O. (PW-6) has not been examined. At what time, this inquest
report was prepared is not known. The inquest report (Exhibit '6')
has though been so prepared at 14:00 hours but it does not bear the
case number even as the FIR has been shown registered at 12:45
PM. This creates doubt as to whether the inquest reports were
prepared at the place of occurrence or it was a mere paperwork in
the police station as has been suggested by the defence. The I.O.
(PW-6) has not recorded the statement of the inquest report
witnesses and the seizure list witnesses. In course of trial,
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
prosecution filed an application stating that these witnesses are
material witnesses but not made charge-sheet witnesses by the I.O.
so court should give the prosecution an opportunity to examine.
The learned trial court passed order on 07.01.2020 and 10.01.2020
which speaks for itself. Both the orders are quoted hereunder:-
U;k;ky;& vij l= U;k;k/kh'k] prqFkZ ukyUnk] fcgkj'kjhQ A
l= okn la0 322@2017
07.01.2020 jkT;---- cuke------------ Jo.k ;kno ,oa vU;----- vfHk;qäx.k A
okn vfHkys[k vfHk;kstu ds rjQ ls nkf[ky vkosnu fnukad 03@01@2020 vUrxZr /kkjk 311
n0ç0l0 ,oa çfrmÙkj fnukad 07@01@2020 ij vkns'kkFkZ çLrqr fd;k x;kA mHk; i{kksa dks lqukA
fo}ku vij yksd vfHk;kstu Jh lq'khy dqekj dk dFku gS fd çLrqr ekeys esa e`R;q leh{kk çfrosnu ,oa
tfIr lwfp vfHkys[k ij gSA e`R;q leh{kk çfrosnu ds xokg ujsUæ çlkn flUgk ,oa fojsUæ çlkn gS] tcfd tfIr lwfp ds
xokg jktfd'kksj çlkn ,oa fojsUæ çlkn gSaA budk vkxs dFku gS fd nqHkkXZ;o'k bu lkf{k;ksa dk uke vkjksi i= esa
vuqla/kkudrkZ }kjk vafdr ugha fd;k x;k Fkk] ftl dkj.k budh xokgh ugha gks ldhA ;s rF; ds xokg gSa rFkk budk
lk{; U;k;fgr esa gksuk vko';d gS] ,slh ifjfLFkfr esa bUgsa lk{; gsrq vkgwr fd;k tk;A
cpko i{k ds rjQ ls fo}ku vf/koäk Jh nhid jLrksxh dk dFku gS fd vfHk;kstu ds rjQ ls nkf[ky
vkosnu fof/k ,oa rF; ds -f"Vdks.k esa iks"kuh; ugha gSA budk vkxs dFku gS fd mä vkosnu ekeys ds fu"iknu esa
foyEc djus ds fy, nkf[ky fd;k x;k gS] tcfd çLrqr ekeys esa nks vfHk;qä dkjk esa gS rFkk vfHk;kstu ds vuqjks/k ij
vfHk;kstu lk{; fnukad 02@07@2018 dks can dj fn;k x;k FkkA rRi'pkr~ okn vfHkys[k cgl gsrq yfEcr pyk vk
jgk gSA budk vkxs dFku gS fd cpko i{k dk cgl lHkh fcUnqvksa ij iw.kZ gks pqdk gS rFkk cpko i{k ds rjQ ls
fyf[kr cgl Hkh U;k;ky; esa nkf[ky dh tk pqdh gSA ekuuh; mPp U;k;ky; }kjk fØå feå uaå& 44780@2017
deys'k ;kno cuke fcgkj ljdkj ikfjr vkns'k fnukad 20@09@2017 ds voyksdu ls Li"V gksxk fd ekuuh;
U;k;ky; us çLrqr ekeyk dks fu"iknu djus gsrq ek= lkr ekg dk le; fn;k Fkk rFkk ekeys dk fopkj.k
fnu&çfrfnu ds vk/kkj ij djus dk vkns'k fn;k Fkk] ijarq vfHk;kstu ds ykijokgh ds dkj.k ekuuh; U;k;ky; }kjk
fu/kkZfjr vof/k esa ekeys dk fu"iknu ugha gks ldkA tcfd vfHk;qä deys'k ;kno o"kZ 2016 ls dkjk esa gS rFkk
Jo.k ;kno Hkh cgqr fnuksa ls dkjk esa gSA mudk ;g Hkh dFku gS fd vuqla/kkudrkZ ds lk{; ds voyksdu ls Li"V gS
fd vfHk;kstu ds vkosnu esa ukfer lk{kh vuqla/kkudrkZ ds le{k viuk c;ku nsus gsrq mifLFkr ugha gq,] ftl dkj.k
vuqla/kkudrkZ mudk c;ku ugha ys ldkA ,slh ifjfLFkfr esa vfHk;kstu ds vkosnu esa dksbZ cy ugha gSA vr% bls [kkfjt
fd;k tk; A
vfHkys[k dk voyksdu fd;kA çLrqr ekeyk o"kZ 2017 ls l= U;k;ky; esa fopkj.k gsrq yfEcr gSA çLrqr
ekeyk ,d cgqpfpZr ekeyk gS] ftlesa ,d eqf[k;k ,oa mlds lg;ksxh dh gR;k dk vkjksi vfHk;qäx.k ds fo#) yxk;k
x;k gSA vfHk;qäx.k 'kq: ls dkjk esa gSAa çLrqr ekeys esa vfHk;kstu dk lk{; vfHk;kstu ds fuosnu ij fnukad
02@07@2018 dks can fd;k x;k rFkk vfHk;qäx.k dks /kkjk 313 nåçålå ds vUrxZr c;ku fnukad 12@07@2018 dks
ntZ fd;k x;k rFkk cpko i{k dk lk{; fnukad 24@09@2018 dks can fd;k x;k rRi'pkr~ vfHkys[k cgl gsrq fu;r
fd;k x;kA ;gk¡ mYys[kuh; gS fd ;g ekeyk iwoZ esa r`rh; vij l= U;k;k/kh'k] fcgkj'kjhQ ds U;k;ky; esa py jgk
Fkk rFkk mä U;k;ky; esa cpko i{k ds rjQ ls nks&nks ckj cgl gqvk] ijarq vfHk;kstu viuk cgl ugha fd;k] blh
chp okn vfHkys[k LFkkukarj.k ds mijkar fnukad 26@08@2019 dks bl U;k;ky; esa çkIr gqvk rFkk cpko i{k bl
U;k;ky; esa viuk cgl fnukad 22@11@2019 dks lekIr fd;kA rRi'pkr~ okn vfHkys[k vfHk;kstu ds cgl gsrq fu;r
fd;k x;k] ijarq fnukad 23@12@2019 rd vij yksd vfHk;kstd cgl djus gsrq U;k;ky; esa mifLFkr ugha gq, mUgsa
cqyokdj lwfpr fd;k x;k fd ;fn fnukad 03@01@2020 dks vfHk;kstu ds rjQ ls cgl 'kq: ugha fd;k tk,xk rks
vfHk;kstu dk cgl lqus fcuk gh okn vfHkys[k fu.kZ; gsrq fuf'pr dj fn;k tk,xk rRi'pkr~ vfHk;kstu ds rjQ ls
fnukad 03@01@2020 dks /kkjk 311 nåçålå ds vUrxZr ;g vkosnu nkf[ky fd;k x;k gS] tcfd ekuuh; mPp
U;k;ky; iVuk }kjk Jo.k ;kno mQZ Jo.k dqekj cuke fcgkj jkT; fØå feå uaå& 30213@2019 esa ikfjr vkns'k
fnukad 15@07@2019 ls bl U;k;ky; dks vknsf'kr fd;k x;k gS fd fopkj.k U;k;ky;] fopkj.k esa 'kh?kzrk djsxk rFkk
ekeys dk fopkj.k vkns'k çkfIr ds N% ekg ds vUnj lekIr dj ekeys dk fu"iknu dj nsxk D;ksafd ekeyk cgl ds
fy, fu;r gSA mä vkns'k ds voyksdu ls Li"V gS fd tekur vkosnu dk fojks/k djus gsrq ekuuh; mPp U;k;ky; esa
lwpd ds fo}ku vf/koäk mifLFkr gq, Fks rFkk tekur vkosnu dk fojks/k djus ds Øe esa mUgksaus ;g Lohdkj fd;k Fkk
fd okn vfHkys[k cgl ds fy, fu;r gSA blds iwoZ Hkh ekuuh; mPp U;k;ky; us deys'k ;kno ds tekur vkosnu ds
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
lquokbZ ds le; bl U;k;ky; dks lkr ekg ds vUnj ekeys dk fu"iknu djus dk vkns'k fn;k Fkk] ijarq i{kdkjksa ds
vlg;ksxkRed joS;k ds dkj.k okn dk fu"iknu ugha gks ldrkA
;g mYys[kuh; gS fd cpko i{k ds cgl ds Øe esa bl fcUnw ij ges'kk cy fn;k tkrk jgk gS fd
vfHk;kstu }kjk e`R;q leh{kk çfrosnu ds lk{kh rFkk tfIr lwfp ds lkf{k;ksa dk lk{; U;k;ky; esa ugha djk;k x;k gS]
tcfd e`R;q leh{kk çfrosnu ds nksuksa lk{kh e`rd ds vius lgksnj HkkbZ gSa] ijarq vfHk;kstu }kjk mUgsa cqykus gsrq dksbZ
vkosnu ugha fn;k x;kA lEiw.kZ vfHkys[k voyksdu ls Hkh ;g Li"V gS fd vfHk;kstu us çLrqr ekeys ds lapkyu esa ?kksj
vfu;ferrk cjrh gS] muds rjQ ls tIr çn'kksZ dks Hkh U;k;ky; esa çLrqr fd;k x;k gS vkSj u gh mUgsa çLrqr djus
gsrq U;k;ky; ls dHkh Hkh çkFkZuk dh xbZ gSA vfHkys[k ds voyksdu ls ;g Hkh Li"V gS fd bu lkf{k;ksa dks lk{; gsrq
cqykus ds fy, dksbZ vkosnu U;k;ky; esa ugha fn;k x;k vkSj u gh U;k;ky; ls lkf{k;ksa ds fo:) lEeu fuxZr djus ds
fy, dksbZ çkFkZuk dh xbZ tks vij yksd vfHk;kstd dh ?kksj ykijokgh dk ?kksrd gSA ekeys ds bl çØe ij muds
rjQ ls nkf[ky ;g vkosnu ;g n'kkZrk gS fd os ekeys dk fopkj.k lEiq"V ugha gksus nsuk pkgrs gSa rFkk
;su&dsu&çdkjsu ekeys dks yfEcr j[kuk pkgrs gSa A ;g lgh gS fd mä lkf{k;ksa dk lk{; U;k;fgr esa vko';d Fkk]
ijarq vij yksd vfHk;kstd ds ?kksj ykijokgh ds dkj.k lkf{k;ksa dk lk{; U;k;ky; esa ugha gks ldkA ,slh ifjfLFkfr esa
vfHk;kstu dk vkosnu eks0& 20]000@& ¼chl gtkj :i;k½ [kpkZ ds lkFk Loh--r fd;k tkrk gS rFkk vfHk;kstu dks
ek= nks frfFk 09@01@2020 ,oa 10@01@2020 dh frfFk fu;r dh tkrh gS] bu nks frfFk;ksa ds vUnj os vius lkf{k;ksa
dks U;k;ky; esa çLrqr djsxsa rFkk mldk lk{; djk;sxsaA lkf{k;ksa dk lk{; eks0 20]000@& ¼chl gtkj :i;k½
U;k;ky; esa tek djus ds mijkar gh fy;k tk,xk] tks dkjk/khu nksuksa vfHk;qäksa dks cjkcj&cjkcj ns; gksxk A
vkns'k dh ,d çfr ftykf/kdkjh] ukyUnk fcgkj'kjhQ dks lwpukFkZ vfoyEc Hksth tk; A
¼ys[kkfir½
g0@&
vij l= U;k;k/kh"k] prqFkZ
ukyUnk] fcgkj"kjhQA
U;k;ky;& vij l= U;k;k/kh'k] prqFkZ ukyUnk] fcgkj'kjhQ A
l= okn la0 322@2017
l= okn la0& 408@2017
10-01-2020- jkT;------------------ cuke------------ Jo.k ;kno ,oa vU;------------------ vfHk;qäx.k A
vij yksd vfHk;kstd ds rjQ ls nkf[ky vkosnu fnukad 09@01@2020 ij mHk; i{kksa dks lqukA vij yksd
vfHk;kstd dk dFku gS fd fnukad 07@01@2020 dks U;k;ky; }kjk ikfjr vkns'k esa vfHk;kstu ds fo:) 20]000@&
¼chl gtkj :i;k½ [kpkZ tek djus ds mijkar xokgksa dh xokgh ysus dk vkns'k fn;k x;k FkkA vr% [kpkZ dh jkf'k dks
ekQ djrs gq, xokgksa dh xokgh yh tk; A
nwljh rjQ cpko i{k ds fo}ku vf/koäk vkosnu dk fojks/k fd;kA mudk dFku gS fd çLrqr okn esa nks
vfHk;qä ekeys ds vuqla/kku ds le; ls gh dkjk esa gSA ekuuh; mPp U;k;ky; }kjk ekeys dk fuLrkj.k djus dk
nks&nks ckj vkns'k gqvk] ijarq vfHk;kstu ds vlg;ksx ds dkj.k ekeys dk fuLrkj.k ugha gks ldkA ;gk¡ rd fd cpko
i{k dh cgl vij l= U;k;k/kh'k] r`rh;] fcgkj'kjhQ ds U;k;ky; esa nks ckj gks pqdh gSA iqu% bl U;k;ky; esa cpko
i{k dh cgl lekIr gks pqdh gS] ijarq tkucw>dj vfHk;kstu }kjk ekeys ds fuLrkj.k esa vojks/k fd;k tk jgk gS] tcfd
cgl ds le; bl rF; dks mBk;k x;k fd e`rd ds lgksnj HkkbZ gksus ds ckotwn e`R;q leh{kk çfrosnu ds lwpd dk
lk{; U;k;ky; esa ugha djk;k x;k gSA vfHk;kstu }kjk dksbZ dne bl fn'kk esa ugha mBk;k x;k gSA mudk ;g Hkh
dFku gS fd ekuuh; mPp U;k;ky; us tekur vkosnu ds fojks/k ds le; lwpd mifLFkr gksdj Lo;a Lohdkj fd;k Fkk
fd vfHk;kstu dk lk{; can gks pqdk gS] vfHk;kstu viuh deh dk iwjk djuk pkgrs gS] ,slh ifjfLFkfr esa vfHk;kstu dk
vkosnu [kkfjt fd;k tk; A
lquk ,oa vkns'k fnukad 07@01@2020 dks voyksdu fd;kA vkns'k esa 20]000@& ¼chl gtkj :i;k½
[kpkZ ds lkFk vfHk;kstu dk vkosnu Loh--r fd;k x;k Fkk rFkk mUgsa ek= nks frfFk 09@01@2020 ,oa 10@01@2020
xokgksa dh xokgh gsrq nh xbZ FkhA xokgksa dh xokgh ds fy, eq[; 'krZ eks0 20]000@& ¼chl gtkj :i;k½ [kpkZ tek
djuk Fkk] ijarq vfHk;kstu [kpsZa dh jkf"k tek ugh dh xbZA muds vkosnu esa [kpZ dh jkf"k ekQ djus dk dksbZ vk/kkj
ugha fn;k x;k gS ftl dkj.k ls mldk vkonsu Lohd`r fd;k tk;A ,slh ifjfLFkfr esa vfHk;kstu dk vkosnu fnukad
09@01@2020 dks [kkfjt fd;k tkrk gSA
okn fnukad ------------------------------------------oklrs
¼ys[kkfir½
g0@&
vij l= U;k;k/kh"k] prqFkZ
ukyUnk] fcgkj"kjhQA
ckn esa
10-01-2020
lHkh 12 vfHk;qDrksa esa ls dkjkxr nks vfHk;qDrksa dks dkjk ls C/W ds lkFk Hkstk x;kA "ks'k 10 vfHk;qDrksa esa ls nks
vfHk;qDrksa /keZohj dqekj ,oa lqdsl dqekj dh gktjh gSaA "ks'k vkB vfHk;qDrksa ds vksj ls odkyru gktjh nh xbZA ftls
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
dsoy vkt Hkj ds fy, Lohd`r fd;k tkrk gSA APP rhu xokgksa dh gktjh nsrs gSA okn fnukad 13@11@2020 dks
cgl gsrqA
90. When we go through the postmortem report (Exhibit
'4'), we have noticed that the body was received in the hospital on
30.11.2016 at 3:00 PM and thereafter the postmortem commenced
at 3:20 PM. The postmortem report has been prepared on the same
day. The doctor (PW-5) has stated that on the basis of rigor mortis,
the time of death is determined and in this case he had written 12
hours means it may be between 12-18 hours but it would depend
upon the evidence. In this regard, this Court would notice the
judgment of the Hon'ble Supreme Court in the case of Baso
Prasad (supra) in which the Hon'ble Supreme Court has held that
the exact time of death cannot be scientifically and precisely
established. Paragraph '21' and '22' of the said judgment are
quoted hereunder for a ready reference:-
"21. In Parikh's Textbook of Medical Jurisprudence,
Forensic Medicine and Toxicology, 6th Edn., at p. 3.14, it
is stated:
"Rigor mortis (rigor--rigidity; mortis--of death) is a
condition characterised by stiffening and shortening of the
muscles which follow the period of primary relaxation. It is
due to chemical changes involving the structural proteins
of the muscle fibres and indicates the molecular death of its
cells.
The contractile element of the muscle consists of protein
filaments of two types viz. myosin and actin, which are
arranged and organised in an interdigitating manner. In the
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
relaxed state, the actin filaments interdigitate with myosin
filaments only to a small extent but when the muscle
contracts, they interdigitate to a great extent due to the
presence of ATP (adenosine triphosphate). The production
and utilisation of ATP are constantly balanced in life. After
death, ATP is resynthesised for a short time depending
upon the glycogen available locally, but after this glycogen
is used up, ATP cannot be resynthesised. This leads to the
fusion of myosin and actin filaments into a dehydrated stiff
gel resulting in the condition known as rigor mortis.
During rigor mortis, the reaction of muscle changes from
slightly alkaline to distinctly acid owing to the local
formation of lactic acid. Rigor mortis persists until
autolysis of myosin and actin filaments occurs as a part of
putrefaction. When autolysis occurs, the muscles soften
and secondary relaxation sets in.
Rigor mortis can also be broken by mechanical force.
Thus, if a limb, which is stiff due to rigor, is flexed forcibly
at a joint, the limb becomes flaccid and will remain so
thereafter. This is known as breaking of rigor mortis.
Existing rigor mortis is broken down at least partially in
the process of removal of the body from the crime scene to
mortuary, and this may mislead the doctor in estimation of
time since death. It is therefore essential to make a note of
its stage of development while visiting the crime scene.
All muscles of the body, voluntary and involuntary, are
affected by rigor. It first appears in involuntary and then in
voluntary muscles. It is not dependent on the nerve supply
as it also develops in the paralysed limbs. It is tested by (1)
attempting to lift the eyelids, (2) depressing the jaw, and
(3) gently bending the neck and various joints of the body."
At p. 3.16 it is stated:
"The medico-legal importance is as follows: (1) It is a sign
of death. (2) It helps to estimate the time since death. (3) It
may give information about the position of the body at the
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
time of death and if it has been altered after rigor has set in.
As for example, if a person dies with the hands and legs
supported against a brick wall and the position of the body
has been changed after rigor set in, the hands and legs
would remain raised in an unnatural position (without
support).
The factors which influence rigor mortis are: (1) age and
condition of the body, (2) mode of death, and (3)
surroundings.
Age and condition of the body: In children and old people,
rigor develops earlier than in the adults. The onset of rigor
is later and the duration longer in the strong muscular
person. The more feeble or poorly developed the muscles,
the more rapid is the time of onset, and the shorter the
duration."
22. The exact time of death, therefore, cannot be
established scientifically and precisely, only because of
presence of rigor mortis or in the absence of it."
91. We find that in this case, the occurrence is said to
have taken place at 9:45 AM and the time of postmortem is 3:20
PM, therefore it was within six hours but the doctor has stated that
the death was within twelve hours. He has also stated that during
winter season at least six hours will be taken in coming of rigor
mortis and six hours will take in going of the rigor mortis. On this
point, the defence has not taken any contradiction. The fact that
there was no rigor mortis present on the dead bodies would only
create a doubt over the timing of the occurrence.
92. The I.O. (PW-6) who is a prime witness of the
prosecution has stated in paragraph '104' of the deposition that in
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
course of investigation he had taken out the call detail record and
mobile tower location of Kamlesh Yadav and Dharamveer Yadav
and both the numbers were found in village Moosepur and
Biharsharif respectively. He had recorded statement of Narayan
Prasad Singh, Sub-Inspector of Police Bhagan Bigha OP and
Chaukidar Prayag Paswan and other villagers. In fact Narayan
Prasad Singh, S.I. of Bhagan Bigha OP and Chaukidar both were
made chargesheet witnesses but they have deposed on behalf of
the defence in favour of Kamlesh Yadav. During investigation also
they had stated in favour of Kamlesh Yadav.
93. As regards appreciation of the evidence of related
and interested witnesses, the Hon'ble Supreme Court has held that
their evidence cannot be discarded only on the ground that they are
related and interested witnesses. Learned counsel for the informant
has relied upon the judgment of the Hon'ble Supreme Court in the
case of Rajesh Yadav vs. State of U.P. reported in (2022) 12 SCC
200 (paragraph '31' and '32') in this regard. This Court has
considered this aspect of the matter in catena of judgments keeping
in view the judgments of the Hon'ble Supreme Court. In this case,
the witnesses are not only related, they are also inimical and
interested witnesses. They admitted that Kamlesh, Sukesh and
Dharamveer were canvassing in favour of Shrawan Yadav during
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
Mukhiya election and Shrawan Yadav was a rival contestant of
Shivendra Mukhiya, therefore the enmity between the parties are
apparent on the face of the record. In such circumstance, this Court
would rely upon the judgment of the Hon'ble Supreme Court in
the case of Sekaran vs. State of Tamil Nadu reported in (2024) 2
SCC 176, Jaikam Khan vs. State of Uttar Pradesh reported in
(2021) 13 SCC 716, Mallanna and Others vs. State of
Karnataka reported in (2007) 8 SCC 523 to take a view that the
conviction of the appellants on the basis of the testimony of PW-1
to PW-4, who cannot be believed as eyewitnesses of the
occurrence, would not be safe.
94. As regards the chance witnesses such as PW-1 and
PW-3, the Hon'ble Supreme Court has considered in case of
Harbeer Singh vs. Sheeshpal and Others reported in (2016) 16
SCC 418 (paragraph '23') and Suresh and another vs. State of
Haryana reported in (2018) 18 SCC 654 (paragraph '47') as
under:-
"23. The defining attributes of a "chance witness"
were explained by Mahajan, J., in Puran v. State of
Punjab30. It was held that such witnesses have the
habit of appearing suddenly on the scene when
something is happening and then disappearing after
noticing the occurrence about which they are called
later on to give evidence.
30. AIR 1953 SC 459 : 1953 Cri LJ 1925
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
47. Generally, the chance witness, who reasonably
explains his presence in the named location at the
relevant time, may be taken into consideration and
should be given due regard, if his version inspires
confidence and the same is supported by surrounding
circumstances. Nonetheless, the evidence of a chance
witness requires a very cautious and close scrutiny. A
chance witness must adequately explain his presence
at the place of occurrence (refer to Satbir v. Surat
Singh11 and Harjinder Singh v. State of Punjab12.
Deposition of a chance witness whose presence at the
place of incident remains doubtful should be discarded
(refer to Shankarlal v. State of Rajasthan13. The
behaviour of the chance witness, subsequent to the
incident may also be taken into consideration
particularly as to whether he has informed anyone else
in the village about the incident (refer to Thangaiya v.
State of T.N.14)."
95. Having analyzed the entire evidence and the
materials on the record, we are of the opinion that the learned trial
court has not noticed the material discrepancies and contradictions
in the statement of the prosecution witnesses. The whole case
depends upon the claim of PW-1, PW-2, PW-3 and PW-4 that they
are eyewitnesses to the occurrence but this Court finds that they
cannot be put in the category of eyewitnesses, their presence at the
11. (1997) 4 SCC 192 : 1997 SCC (Cri) 538
12. (2004) 11 SCC 253 : 2004 SCC (Cri) Supp 28
13. (2004) 10 SCC 632 : 2005 SCC (Cri) 579
14. (2005) 9 SCC 650 : 2005 SCC (Cri) 1284
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
place of occurrence is highly doubtful, there is no scientific
evidence to prove their presence and their conduct as has been
noticed hereinabove are also unnatural conducts which would
create a doubt over their presence at the place of occurrence on the
date and time of occurrence.
96. In result, we set aside the impugned judgment of the
learned trial court. All the appellants are acquitted giving them
benefit of doubt. They are in custody, hence they would be
released forthwith if not wanted in any other case.
97. At this stage, we are constrained to invite the
attention of the State through it's Department of Home,
Government of Bihar towards the manner in which the
investigation has been conducted by I.O. (PW-6) and the present
case has been pursued in the trial court. The trial court's order
dated 07.01.2020 and 10.01.2020 are speaking all. We have
pointed out hereinabove in detail how he has done his duties in the
course of investigation. In case of State of Gujarat versus
Kishanbhai and Others reported in (2014) 5 SCC 108, the
Hon'ble Supreme Court has issued directions in paragraph '19',
'22' and '23' which we reproduce hereunder for a ready reference:-
"19. Every time there is an acquittal, the consequences are
just the same, as have been noticed hereinabove. The
purpose of justice has not been achieved. There is also
another side to be taken into consideration. We have
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
declared the respondent-accused innocent, by upholding
the order of the High Court, giving him the benefit of
doubt. He may be truly innocent, or he may have
succeeded because of the lapses committed by the
investigating/prosecuting teams. If he has escaped, despite
being guilty, the investigating and the prosecution agencies
must be deemed to have seriously messed it all up. And if
the accused was wrongfully prosecuted, his suffering is
unfathomable. Here also, the investigating and prosecuting
agencies are blameworthy. It is therefore necessary, not to
overlook even the hardship suffered by the accused, first
during the trial of the case, and then at the appellate stages.
An innocent person does not deserve to suffer the turmoil
of a long-drawn litigation, spanning over a decade or more.
The expenses incurred by an accused in his defence can
dry up all his financial resources -- ancestral or personal.
Criminal litigation could also ordinarily involve financial
borrowings. An accused can be expected to be under a
financial debt, by the time his ordeal is over.
22. Every acquittal should be understood as a failure of the
justice delivery system, in serving the cause of justice.
Likewise, every acquittal should ordinarily lead to the
inference, that an innocent person was wrongfully
prosecuted. It is therefore essential that every State should
put in place a procedural mechanism which would ensure
that the cause of justice is served, which would
simultaneously ensure the safeguard of interest of those
who are innocent. In furtherance of the above purpose, it is
considered essential to direct the Home Department of
every State to examine all orders of acquittal and to record
reasons for the failure of each prosecution case. A Standing
Committee of senior officers of the police and prosecution
departments should be vested with the aforesaid
responsibility. The consideration at the hands of the above
Committee, should be utilised for crystallising mistakes
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
committed during investigation, and/or prosecution, or
both. The Home Department of every State Government
will incorporate in its existing training programmes for
junior investigation/prosecution officials course-content
drawn from the above consideration. The same should also
constitute course-content of refresher training programmes
for senior investigating/prosecuting officials. The above
responsibility for preparing training programmes for
officials should be vested in the same Committee of senior
officers referred to above. Judgments like the one in hand
(depicting more than ten glaring lapses in the
investigation/prosecution of the case), and similar other
judgments, may also be added to the training programmes.
The course-content will be reviewed by the above
Committee annually, on the basis of fresh inputs, including
emerging scientific tools of investigation, judgments of
courts, and on the basis of experiences gained by the
Standing Committee while examining failures, in
unsuccessful prosecution of cases. We further direct, that
the above training programme be put in place within 6
months. This would ensure that those persons who handle
sensitive matters concerning investigation/prosecution are
fully trained to handle the same. Thereupon, if any lapses
are committed by them, they would not be able to feign
innocence when they are made liable to suffer departmental
action for their lapses.
23. On the culmination of a criminal case in acquittal, the
investigating/prosecuting official(s) concerned responsible
for such acquittal must necessarily be identified. A finding
needs to be recorded in each case, whether the lapse was
innocent or blameworthy. Each erring officer must suffer
the consequences of his lapse, by appropriate departmental
action, whenever called for. Taking into consideration the
seriousness of the matter, the official concerned may be
withdrawn from investigative responsibilities, permanently
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
or temporarily, depending purely on his culpability. We
also feel compelled to require the adoption of some
indispensable measures, which may reduce the malady
suffered by parties on both sides of criminal litigation.
Accordingly, we direct the Home Department of every
State Government to formulate a procedure for taking
action against all erring investigating/prosecuting
officials/officers. All such erring officials/officers
identified, as responsible for failure of a prosecution case,
on account of sheer negligence or because of culpable
lapses, must suffer departmental action. The above
mechanism formulated would infuse seriousness in the
performance of investigating and prosecuting duties, and
would ensure that investigation and prosecution are
purposeful and decisive. The instant direction shall also be
given effect to within 6 months."
98. It is the duty of the State to review the conduct of the I.O.
in carrying on the investigation of the present case as well as that of
conduct of trial by the prosecution, in accordance with the directions of
the Hon'ble Supreme Court. The State has to take a view as to whether
it is a case of lack of knowledge or competence on the part of the I.O.
and the prosecution or that of a case of culpable negligence. Let
appropriate review be undertaken within a period of three months from
the date of receipt of a copy of this judgment and an action taken report
shall be submitted to this Court for purpose of perusal.
99. Let a copy of this judgment be sent down to the
learned trial court with the trial court's records immediately.
Patna High Court CR. APP (DB) No.117 of 2022 dt.15-05-2025
100. The Registry shall forward a copy of this judgment
to the Additional Chief Secretary, Department of Home,
Government of Bihar for taking appropriate action in terms of the
judgment of the Hon'ble Supreme Court in case of Kishanbhai
(supra).
101. These appeals are allowed.
(Rajeev Ranjan Prasad, J)
(Ashok Kumar Pandey, J)
arvind/-
AFR/NAFR
CAV DATE 12.05.2025
Uploading Date 15.05.2025
Transmission Date 15.05.2025
