[Cites 34, Cited by 0]
Patna High Court
Dinesh Yadav vs The State Of Bihar on 13 May, 2026
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.131 of 1996
Arising Out of PS. Case No.-6 Year-1994 Thana- AMDABAD District- Katihar
======================================================
1. DINESH YADAV S/O CHHABILAL YADAV R/O VILLAGE-
CHOWKCHAM, P.S- AMDABAD, DISTT.- KATIHAR.
2. DORHI YADAV @ CHIT NARAIN YADAV S/O CHHBILAL YADAV R/O
VILLAGE- CHOWKCHAM, P.S- AMDABAD, DISTT.- KATIHAR.
3. BULLU YADAV S/O CHHABI LAL YADAV R/O VILLAE-
CHOWKCHAM, P.S- AMDABAD, DISTT.- KATIHAR.
... ... Appellant/s
Versus
THE STATE OF BIHAR BIHAR
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Ms.Muskan Singh, Amicus Curiae
For the Respondent/s : Mr.Abhimanyu Sharma, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE NANI TAGIA
and
HONOURABLE MR. JUSTICE ANSUL
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ANSUL)
Date : 13-05-2026
Heard Ms. Muskan Singh, learned amicus curiae for the
appellants and Mr. Abhimanyu Sharma, learned Additional Public
Prosecutor for the State.
2. In the instant appeal, the appellants have challenged
the judgment of conviction dated 08.02.1996 and order of sentence
dated 13.02.1996 passed by the learned Additional Sessions Judge-
I, Katihar in Sessions Trial No. 188 of 1994, arising out of
Amdabad P.S. Case No. 06 of 1994 (G.R. No. 187 of 1994), where
by the appellants have been convicted under Sections 302, 120B
Patna High Court CR. APP (DB) No.131 of 1996 dt.13-05-2026
2/27
and 201 of Indian Penal Code (for short "I.P.C."). For the offence
under Sections 302 and 120B, the appellants have been sentenced
to undergo rigorous imprisonment for life. Further appellant No. 3
Bullu Yadav was also convicted under Section 364 IPC and he was
sentenced to undergo rigorous imprisonment for life. The
sentences awarded to the appellants were directed to run
concurrently.
3. The prosecution case in brief is that the informant
Shiv Bhajan Yadav (PW 13) lodged information that on
29.01.1994
at 06:00 PM his son Subhash Yadav alias Budhwa was
attending to the crop and he was also there. Bullu Yadav called his
son and asked him to sit on his cycle and went towards north of the
village. The informant saw Bullu Yadav calling and taking his son.
Later, the informant reached his house at 08:00 PM and upon
inquiry he got to know that his son has not returned home yet.
Thereafter he started searching his son but could not find him. He
alleged that the day from which his son had gone missing Bullu
Yadav, Rampreet Yadav and Dinesh Yadav, all had fled away from
their houses and were seen after two days. He alleged that Bullu
Yadav, Rampreet Yadav, Dinesh Yadav and Chhabila Yadav had
taken his son with an intention of killing him. He stated that the
motive for the same was that he had deposed against their
Patna High Court CR. APP (DB) No.131 of 1996 dt.13-05-2026
opponent Birja Yadav in a land related case. He also stated that
when Bullu Yadav was taking away his son he was also seen by
Ramadhar Yadav (PW-3) and Devbrat Yadav (PW-1). He further
stated in the written report that his son is a twelve year old boy and
is fair skinned.
4. After investigation, police submitted charge-sheet for
the offence under Sections 302, 201 and 120(B) of the Indian
Penal Code, thereafter, cognizance was taken and charges were
framed.
5. During the course of trial, altogether fourteen
witnesses were examined in support of the prosecution case, who
are as under:-
P.W.-1 Dev Vrat Yadav
P.W.-2 Dhanraj Yadav
P.W.-3 Ramadhar Yadav
P.W.-4 Bhujali Yadav
P.W.-5 Ram Bhajan Yadav
P.W.-6 Dahai Prasad Chaudhary
P.W.-7 Gajadhar Yadav
P.W.-8 Bhola Yadav
P.W.-9 Hari Tanti
P.W.-10 Bechni Devi
P.W.-11 Prithvi Chandra Yadav
P.W.-12 Dr. Rajesh Kumar (Doctor)
P.W.-13 Shivbhajan Yadav (Informant)
P.W.-14 Bhagwan Prasad Gupta
Patna High Court CR. APP (DB) No.131 of 1996 dt.13-05-2026
6. Apart from the oral evidences, the documentary
evidences were also exhibited on behalf of the prosecution, which
are as follows:-
Exhibit-1 Signature of the informant on carbon copy of
fardbeyan
Exhibit-1/A Signature of Dhanraj Yadav on the
confessional statement of Bullu Yadav
Exhibit-1/B Signature of Ramadhar Yadav on the
confessional statement of Bullu Yadav
Exhibit-1/C Signature of Bhujal Yadav on the confessional
statement of Bullu Yadav
Exhibit-2 Signature of Bullu Yadav on his confessional
statement
Exhibit-3 Postmortem Examination Report of deceased
Subhash Yadav
Exhibit-4 The Inquest Report
Exhibit-5 Seizure List
Exhibit-6 Formal FIR
Exhibit-6/A Pagination on Formal FIR
Exhibit-7 Fardebyan
7. During investigation on 04.02.1994 the dead-body of
the boy was recovered from a river. Bullu Yadav was arrested on
06.04.1996. He admitted having killed the deceased along with
other two appellants. He also stated that he had kept the dagger
used in the crime in his house from where it was recovered. The
same was done through an extra-judicial confession before
Mukhiya. The Mukhiya wrote the confession and got the knife
recovered. Later on they claim to hand it over to the police.
Patna High Court CR. APP (DB) No.131 of 1996 dt.13-05-2026
8. PW 1 Devbrat Yadav referred to in the FIR, deposed.
He claims to have seen Bullu Yadav taking away Subhash Yadav.
He also stated that he came to know that on 04.02.1994 his dead
body was recovered from the river. He denied having knowledge
of prior animosity between father of the deceased and Bullu Yadav.
9. PW 2 Dhanraj Yadav, writer of the FIR also deposed.
He stated that he came to know about the deceased being missing
at around 08-09:00 PM from Shiv Bhajan Yadav. He also stated
that his dead body was recovered at Naurangia Bandh. He had
gone there along with PW - 6 Tahari Prasad Chaudhary. He further
stated that on 06.02.1994 Bullu Yadav had confessed his guilt
before Mukhiya and other co-villagers. PW 4 Bhujali Yadav, PW 5
Rambhajan Yadav, and one Ramcharan Yadav were also there. The
bayan was written by Mukhiya. In para-5 he stated that after
recording statement of Bullu Yadav, Mukhiya informed the police
on the same day.
10. PW 3 is Ramadhar Yadav. He stated that he saw
Bullu Yadav taking away Subhash Yadav. He also stated that after
5-6 days the dead-body was recovered from a river.
11. PW 4 Bhujali Yadav deposed that he is not a witness
to the boy being taken away but to the recovery of the dead body.
He also stated that Bullu Yadav had given his confession before
Patna High Court CR. APP (DB) No.131 of 1996 dt.13-05-2026
the entire village and same was reduced to writing by PW 11
Prithvi Chandra Yadav. He also stated that Bullu Yadav had not
signed upon that but P.W. 4 had signed upon that and he identified
his signature. He also stated that Bullu Yadav got recovered the
knife used in the crime from his house. He admitted in his cross-
examination that deceased was his cousin.
12. PW 5 Ram Bhajan Yadav claims to have seen the
deceased being taken away by Bullu Yadav.
13. PW 6 Dahari Prasad Choudhary was tendered for
cross-examination.
14. PW 7 is Gajadhar Yadav. He also claims to have seen
taking away of Subhash Yadav by Bullu Yadav. He claimed to be
present at the time of confession of Bullu Yadav and recovery of
knife. He makes an interesting statement that Shiv Bhajan father of
Subhash did not say anything to Bullu as to how he has taken
away his son because he had not seen him taking away. As per this
witness Subhash was not raising any Hulla nor he was weeping. In
para 5 his attention has been drawn to his previous statement
where he admitted that he had not stated before the police that the
deceased was being taken away by Bullu Yadav.
15. PW 8 Bhola Yadav was again tendered for cross-
examination.
Patna High Court CR. APP (DB) No.131 of 1996 dt.13-05-2026
16. PW 9 Hari Tanti is ex-chaukidar. He also claims to
have seen the deceased being taken away by Bullu Yadav.
17. PW 10 Bechni Devi was also tendered for
examination.
18. PW 11 is the Mukhiya before whom the so called
extra judicial confession was recorded. He stated that Bullu Yadav
gave his statement without any coercion or fear and the document
was signed by accused as well as PW 2, PW 4 and PW 6 which
was marked as Exhibit. He stated that he has written the
confessional statement.
19. PW 12 Dr. Rajesh Kumar is the doctor who
conducted the postmortem of the boy on 04.02.1994. He talks
about incised wounds on the body of the deceased. He stated that
time elapsed since death was ten days. He also stated that the body
was fully decomposed and it was very difficult to identify the
body. He gave the time of death to be eight to ten days from the
date of postmortem which takes it before 29.01.1994.
20. PW 13 is the informant. He states that his son was
taken by Bullu Yadav. He admitted that he went to the police four
days after his child had gone missing. He claims to have recovered
the dead body and informed the police. According to him, the very
next day after the recovery of the dead-body Bullu Yadav was
Patna High Court CR. APP (DB) No.131 of 1996 dt.13-05-2026
arrested and the murder weapon i.e. the knife was recovered on the
statement of Bullu Yadav.
21. PW 14 Bhagwan Prasad Gupta is the Investigating
Officer. He stated that on 04.02.1994 he came to know about
recovery of the dead-body and he prepared the inquest report
which he proved as exhibit 4. He stated that a black towel was tied
around the neck of the deceased alongwith a nylon rope and there
were knife blows on neck, stomach and eye. He also talks about
recovery of the knife and consequent seizure. In para 6 he states
that no material object was seized while preparing the inquest of
the dead-body. He stated that he recorded the statement of Pirthvi
Chand Yadav who wrote the confessional statement of Bullu
Yadav and he also recorded the statement of persons who had
signed on it but he did not send the knife for any chemical
examination.
22. Section 313 statement of Bullu Yadav would show
that two main questions were asked. One was that he took away
Subhash Yadav on his cycle and thereafter it has been stated that
he killed him and threw his dead body in Ganga river. He was also
asked regarding his confessional statement made before villagers
where he completely denied making any such statement and he
Patna High Court CR. APP (DB) No.131 of 1996 dt.13-05-2026
also denied making any signature on any such document and he
also denied that he was ever taken to house of the Mukhiya.
23. The case of the prosecution is that the boy was taken
away on 29.01.1994 but the information about the same was given
to the police on 03.02.1994 i.e. after four days of delay. On
04.02.1994 the dead body of the deceased was found, though there
is nothing on record to clearly suggest as to who recovered the
dead body or who first saw the dead body. On 06.02.1994 Bullu
Yadav is said to have made an extra judicial confession before the
Mukhiya and other witnesses in which he has alleged to have
admitted having taken away and killed the deceased. He also
confessed that he was keeping the knife at a particular place in his
house and he got the same recovered before the villagers who
handed it over to the police.
24. The first issue is taking away of the deceased by
Bullu Yadav. PW 1, PW 3, PW5, PW 7, PW9 and the informant
(PW13) are witnesses on the point of taking away. However, PW 9
struck a discordant note stating that the informant had not
protested regarding taking away his son as he had not seen the
deceased being taken away by Bullu Yadav. The case of last seen
seems more or less established.
Patna High Court CR. APP (DB) No.131 of 1996 dt.13-05-2026
25. It is relevant to note that the last seen is not the only
circumstance. The last seen may cast a doubt on the accused and
force him to explain the circumstances. One of the most important
feature connecting the last seen with death is the time lapse
between last seen and recovery of dead body. In the instant case,
the victim went missing on 29.01.1994, the informant waited for
four days before giving any information to anybody. On
03.02.1994 the FIR was lodged and on 04.02.1994 the dead-body
was recovered. There is a delay of five days between the death and
the time when the accused was last seen with the deceased. This
time gap of five days coupled with unexplained delay of four clear
days in lodging of FIR loosens the connection between the theory
of last seen and the death of the deceased. Moreover, the
postmortem report casts a shadow of doubt over the connection
between last seen and death. The postmortem was conducted on
04.02.1994. The doctor conducting postmortem states that the
dead-body was fully decomposed and it was very difficult to
identify. He also states that death took place some eight to ten days
prior to the recovery. That would take back the date of death to
25.01.1994, a situation which is difficult to understand.
26. The source of identification of a highly decomposed
body is also doubtful. Though the informant says that he pulled out
Patna High Court CR. APP (DB) No.131 of 1996 dt.13-05-2026
the body and identified him but the statement of doctor comes in
his way. Moreover no article seems to have been seized from the
body of the deceased including any clothing which could have
helped the identification. No witness has mentioned anything or
any article found on the body of the deceased or nearby which
could have led to identification.
27. Moreover, the so called extra judicial confession
before the Mukhiya and three other witnesses is also difficult to
rely upon. The accused in his statement under Section 313 clearly
denied having made such a confession. The confession was being
made in a broad day light, in such situation nothing prevented the
witnesses to call the police and get the statement recorded before
the police. Yet the same was not done. The recovery pursuant to
the extra judicial confession cannot be treated as confession
leading to recovery in terms of Section 27 of the Arms Act as the
accused was not in police custody.
28. To aggravate the situation, a knife is said to have
been recovered on the information provided by the accused.
However, the knife was never sent for chemical examination and
there is no objective material to suggest that the said knife was
used in the commission of crime.
Patna High Court CR. APP (DB) No.131 of 1996 dt.13-05-2026
29. In any view of the matter confession leading to
recovery as provided under Section 27 of the Evidence Act has its
on limitations which have clearly been defined by Hon'ble
Supreme Court in a number of decisions. The confession is
confined to the extent of recovery only i.e. to say that the knife
was used for commission of the crime. The confession cannot be
taken beyond that and lead to the presumption that it was accused
who committed the crime. Moreover, the requirement of law is
that at the time of receipt of such information the accused must be
in police custody. Here the confession and recovery have been
made before the witnesses and not the police. The same makes it
completely unreliable. In Perumal Raja alias Perumal v. State
represented by Inspector of Police reported as 2024 SCC OnLine
SC 12, relevant para as under:
"19. The prosecution's case, in the absence of
eye witnesses, is based upon circumstantial evidence. As
per Section 25 of the Indian Evidence Act, 18728, a
confession made to a police officer is prohibited and
cannot be admitted in evidence. Section 26 of the
Evidence Act provides that no confession made by any
person whilst he is in the custody of a police officer shall
be proved against such person, unless it is made in the
immediate presence of a Magistrate. Section 279 of the
Evidence Act is an exception to Sections 25 and 26 of
the Evidence Act. It makes that part of the statement
which distinctly leads to discovery of a fact in
Patna High Court CR. APP (DB) No.131 of 1996 dt.13-05-2026
consequence of the information received from a person
accused of an offence, to the extent it distinctly relates to
the fact thereby discovered, admissible in evidence
against the accused. The fact which is discovered as a
consequence of the information given is admissible in
evidence. Further, the fact discovered must lead to
recovery of a physical object and only that information
which distinctly relates to that discovery can be proved.
Section 27 of the Evidence Act is based on the doctrine
of confirmation by subsequent events - a fact is actually
discovered in consequence of the information given,
which results in recovery of a physical object. The facts
discovered and the recovery is an assurance that the
information given by a person accused of the offence
can be relied.
20. In Pulukuri Kottaya v. King Emperor10,
the Privy Council held that the fact discovered embraces
the place from which the physical object is produced and
the knowledge of the accused as to this, and the
information given, must distinctly relate to this fact.
21. In State (NCT of Delhi) v. Navjot Sandhu
alias Afsan Guru11, this Court affirmed that the fact
discovered within the meaning of Section 27 of the
Evidence Act must be some concrete fact to which the
information directly relates. Further, the fact discovered
should refer to a material/physical object and not to a
pure mental fact relating to a physical object
disassociated from the recovery of the physical object.
22. However, we must clarify that Section 27
of the Evidence Act, as held in these judgments, does not
lay down the principle that discovery of a fact is to be
equated to the object produced or found. The discovery
Patna High Court CR. APP (DB) No.131 of 1996 dt.13-05-2026
of the fact resulting in recovery of a physical object
exhibits knowledge or mental awareness of the person
accused of the offence as to the existence of the physical
object at the particular place. Accordingly, discovery of
a fact includes the object found, the place from which it
was produced and the knowledge of the accused as to its
existence. To this extent, therefore, factum of discovery
combines both the physical object as well as the mental
consciousness of the informant accused in relation
thereto. In Mohmed Inayatullah v. State of Maharashtra,
elucidating on Section 27 of the Evidence Act, it has
been held that the first condition imposed and necessary
for bringing the section into operation is the discovery
of a fact which should be a relevant fact in consequence
of information received from a person accused of an
offence. The second is that the discovery of such a fact
must be deposed to. A fact already known to the police
will fall foul and not meet this condition. The third is
that at the time of receipt of the information, the accused
must be in police custody. Lastly, it is only so much of
information which relates distinctly to the fact thereby
discovered resulting in recovery of a physical object
which is admissible. Rest of the information is to be
excluded. The word 'distinctly' is used to limit and
define the scope of the information and means 'directly',
'indubitably', 'strictly' or 'unmistakably'. Only that part
of the information which is clear, immediate and a
proximate cause of discovery is admissible.
23. The facts proved by the prosecution,
particularly the admissible portion of the statement of
the accused, would give rise to two alternative
hypotheses, namely, (i) that the accused had himself
Patna High Court CR. APP (DB) No.131 of 1996 dt.13-05-2026
deposited the physical items which were recovered; or
(ii) only the accused knew that the physical items were
lying at that place. The second hypothesis is wholly
compatible with the innocence of the accused, whereas
the first would be a factor to show involvement of the
accused in the offence. The court has to analyse which
of the hypotheses should be accepted in a particular
case.
24. Section 27 of the Evidence Act is
frequently used by the police, and the courts must be
vigilant about its application to ensure credibility of
evidence, as the provision is vulnerable to abuse.
However, this does not mean that in every case
invocation of Section 27 of the Evidence Act must be
seen with suspicion and is to be discarded as
perfunctory and unworthy of credence.
25. The pre-requisite of police custody, within
the meaning of Section 27 of the Evidence Act, ought to
be read pragmatically and not formalistically or
euphemistically. In the present case, the disclosure
statement (Exhibit P-37) was made by the appellant -
Perumal Raja @ Perumal on 25.04.2008, when he was
detained in another case, namely, FIR No. 204/2008,
registered at PS Grand Bazar, Puducherry, relating to
the murder of Rajaram. He was subsequently arrested in
this case, that is FIR. No. 80/2008, which was registered
at PS Odiansalai, Puducherry. The expression
"custody" under Section 27 of the Evidence Act does not
mean formal custody. It includes any kind of restriction,
restraint or even surveillance by the police. Even if the
accused was not formally arrested at the time of giving
Patna High Court CR. APP (DB) No.131 of 1996 dt.13-05-2026
information, the accused ought to be deemed, for all
practical purposes, in the custody of the police.
26. Reference is made to a recent decision of
this Court in Rajesh v. State of Madhya Pradesh, which
held that formal accusation and formal police custody
are essential pre-requisites under Section 27 of the
Evidence Act. In our opinion, we need not dilate on the
legal proposition as we are bound by the law and ratio
as laid down by the decision of a Constitution Bench of
this Court in State of U.P. v. Deoman Upadhyaya. The
law laid down by this Court in a decision delivered by a
Bench of larger strength is binding on any subsequent
Bench of lesser or coequal strength. This Court in
Deoman Upadhyay (supra) observed that the bar under
Section 25 of the Evidence Act applies equally whether
or not the person against whom evidence is sought to be
led in a criminal trial was in custody at the time of
making the confession. Further, for the ban to be
effective the person need not have been accused of an
offence when he made the confession. The reason is that
the expression "accused person" in Section 24 and the
expression "a person accused of any offence" in
Sections 26 and 27 have the same connotation, and
describe the person against whom evidence is sought to
be led in a criminal proceeding. The adjectival clause
"accused of any offence" is, therefore, descriptive of the
person against whom a confessional statement made by
him is declared not provable, and does not predicate a
condition of that person at the time of making the
statement.
27. Elaborating on this aspect, a three judge
Bench of this Court in Aghnoo Nagesia v. State of Bihar,
Patna High Court CR. APP (DB) No.131 of 1996 dt.13-05-2026
has held that if the FIR is given by the accused to a
police officer and amounts to a confessional statement,
proof of the confession is prohibited by Section 25 of the
Evidence Act. The confession includes not only the
admission of the offence but all other admissions of
incriminating facts related to the offence, except to the
extent that the ban is lifted by Section 27 of the Evidence
Act. While dealing with the admission of part of
confession report dealing with motive, subsequent
conduct and opportunity, this Court rejected the
severability test adopted by some High Courts. The
statement can, however, be relied upon and admitted to
identify the accused as the maker, and the portion within
the purview of Section 27 of the Evidence Act is
admissible. Aghnoo Nagesia (supra) has been applied
and followed by this Court in Khatri Hemraj Amulakh v.
State of Gujarat.
28. The words "person accused of an
offence" and the words "in the custody of a police
officer" in Section 27 of the Evidence Act are separated
by a comma. Thus, they have to be read distinctively.
The wide and pragmatic interpretation of the term
"police custody" is supported by the fact that if a
narrow or technical view is taken, it will be very easy for
the police to delay the time of filing the FIR and arrest,
and thereby evade the contours of Sections 25 to 27 of
the Evidence Act. Thus, in our considered view the
correct interpretation would be that as soon as an
accused or suspected person comes into the hands of a
police officer, he is no longer at liberty and is under a
check, and is, therefore, in "custody" within the
meaning of Sections 25 to 27 of the Evidence Act. It is
Patna High Court CR. APP (DB) No.131 of 1996 dt.13-05-2026
for this reason that the expression "custody" has been
held, as earlier observed, to include surveillance,
restriction or restraint by the police.
29. This Court in Deoman Upadhyay (supra),
while rejecting the argument that the distinction between
persons in custody and persons not in custody violates
Article 14 of the Constitution of India, observed that the
distinction is a mere theoretical possibility. Sections 25
and 26 were enacted not because the law presumed the
statements to be untrue, but having regard to the tainted
nature of the source of the evidence, prohibited them
from being received in evidence. A person giving word of
mouth information to police, which may be used as
evidence against him, may be deemed to have submitted
himself to the "custody" of the police officer. Reference
can also be made to decision of this Court in Vikram
Singh v. State of Punjab, which discusses and applies
Deoman Upadhyay (supra), to hold that formal arrest is
not a necessity for operation of Section 27 of the
Evidence Act. This Court in Dharam Deo Yadav v. State
of Uttar Pradesh, has held that the expression
"custody" in Section 27 of the Evidence Act does not
mean formal custody, but includes any kind of
surveillance, restriction or restraint by the police. Even
if the accused was not formally arrested at the time of
giving information, the accused is, for all practical
purposes, in the custody of the police and the bar vide
Sections 25 and 26 of the Evidence Act, and accordingly
exception under Section 27 of the Evidence Act, apply.
Reliance was placed on the decisions in State of A.P. v.
Gangula Satya Murthy and A.N. Vekatesh v. State of
Karnataka."
Patna High Court CR. APP (DB) No.131 of 1996 dt.13-05-2026
30. Also the time lag between the recovery and the
missing of the deceased is five days. The same would intervene in
imposition of the special knowledge doctrine under section 106 of
the Evidence Act against the accused and relieve him of the burden
of explaining the mode, manner and cause of death of the
deceased. In Ramreddy Rajesh Khanna Reddy and Anr. Vs. State
of A.P reported in (2006) 10 SCC 172, relevant para as under:
"26. It is now well settled that with a view to
base a conviction on circumstantial evidence, the
prosecution must establish all the pieces of
incriminating circumstances by reliable and clinching
evidence and the circumstances so proved must form
such a chain of events as would permit no conclusion
other than one of guilt of the accused. The
circumstances cannot be on any other hypothesis. It is
also well settled that suspicion, however grave it may
be, cannot be a substitute for a proof and the courts
shall take utmost precaution in finding an accused guilty
only on the basis of the circumstantial evidence.
27. The last-seen theory, furthermore, comes
into play where the time gap between the point of time
when the accused and the deceased were last seen alive
and the deceased is found dead is so small that
possibility of any person other than the accused being
the author of the crime becomes impossible. Even in
such a case the courts should look for some
corroboration.
Patna High Court CR. APP (DB) No.131 of 1996 dt.13-05-2026
28. In State of U.P. v. Satish [(2005) 3 SCC
114 : 2005 SCC (Cri) 642] this Court observed: (SCC p.
123, para 22)
"22. The last-seen theory comes into
play where the time-gap between the point of
time when the accused and the deceased were
last seen alive and when the deceased is found
dead is so small that possibility of any person
other than the accused being the author of the
crime becomes impossible. It would be difficult
in some cases to positively establish that the
deceased was last seen with the accused when
there is a long gap and possibility of other
persons coming in between exists. In the
absence of any other positive evidence to
conclude that the accused and the deceased
were last seen together, it would be hazardous to
come to a conclusion of guilt in those cases. In
this case there is positive evidence that the
deceased and the accused were seen together by
witnesses PWs 3 and 5, in addition to the
evidence of PW 2."
31. The Hon'ble Supreme Court has very clearly held in
a plethora of judgments regarding the delay in lodging the FIR and
its effect. The courts have held that FIR is a vital peace of
evidence and primary document in a case. The prompt lodging of
FIR indicates truthfulness and delay in lodging the FIR indicates
the scope of fabrication and false implication after concoction. The
Patna High Court CR. APP (DB) No.131 of 1996 dt.13-05-2026
delay here is fatal not only for the days after which the FIR was
lodged but also that it loosens the connection between the taking
away of the boy and eventual recovery of the dead body thus
ruling out of application of Section 106 of the Evidence Act
against the accused. It would be relevant here to quote few of
those judgments that is Thulia Kali vs. State of Tamil Nadu
reported in (1972) 3 SCC 393, Meharaj Singh vs. State of U.P.,
reported in (1994) 5 SCC 188. Recently in the case of Chotkau
Vs. State of Uttar Pradesh, reported in (2023) 6 SCC 742, the
Hon'ble Apex Court in para 60, 61, 62, 63, 64, 65, 66 and 67 has
held as under:-
"60. On the importance of promptitude, both
in the registration of the FIR and in the transmission of
the same to the court, reliance is placed by Shri
Nagamuthu, learned Senior Counsel on the following
passage in Meharaj Singh v. State of U.P. [Meharaj Singh
v. State of U.P., (1994) 5 SCC 188 : 1994 SCC (Cri)
1391] : (SCC pp. 195-96, para 12)
"12. FIR in a criminal case and
particularly in a murder case is a vital and
valuable piece of evidence for the purpose of
appreciating the evidence led at the trial. The
object of insisting upon prompt lodging of the
FIR is to obtain the earliest information
regarding the circumstance in which the crime
was committed, including the names of the
actual culprits and the parts played by them, the
Patna High Court CR. APP (DB) No.131 of 1996 dt.13-05-2026
weapons, if any, used, as also the names of the
eyewitnesses, if any. Delay in lodging the FIR
often results in embellishment, which is a
creature of an afterthought. On account of
delay, the FIR not only gets bereft of the
advantage of spontaneity, danger also creeps in
of the introduction of a coloured version or
exaggerated story. With a view to determine
whether the FIR was lodged at the time it is
alleged to have been recorded, the courts
generally look for certain external checks. One
of the checks is the receipt of the copy of the
FIR, called a special report in a murder case, by
the local Magistrate. If this report is received by
the Magistrate late it can give rise to an
inference that the FIR was not lodged at the time
it is alleged to have been recorded, unless, of
course the prosecution can offer a satisfactory
explanation for the delay in dispatching or
receipt of the copy of the FIR by the local
Magistrate. Prosecution has led no evidence at
all in this behalf. The second external check
equally important is the sending of the copy of
the FIR along with the dead body and its
reference in the inquest report. Even though the
inquest report, prepared under Section
174CrPC, is aimed at serving a statutory
function, to lend credence to the prosecution
case, the details of the FIR and the gist of
statements recorded during inquest proceedings
get reflected in the report. The absence of those
details is indicative of the fact that the
Patna High Court CR. APP (DB) No.131 of 1996 dt.13-05-2026
prosecution story was still in embryo state and
had not been given any shape and that the FIR
came to be recorded later on after due
deliberations and consultations and was then
ante timed to give it the colour of a promptly
lodged FIR. In our opinion, on account of the
infirmities as noticed above, the FIR has lost its
value and authenticity and it appears to us that
the same has been ante-timed and had not been
recorded till the inquest proceedings were over
at the spot by PW 8."
61. xxx.
62. It is clear from the aforesaid decisions that
the delay in forwarding the FIR may certainly indicate
the failure of one of the external checks to determine
whether the FIR was manipulated later or whether it was
registered either to fix someone other than the real culprit
or to allow the real culprit to escape. While every delay
in forwarding the FIR may not necessarily be fatal to the
case of the prosecution, courts may be duty-bound to see
the effect of such delay on the investigation and even the
creditworthiness of the investigation.
63. xxx.
64. To come to the above conclusion, reliance
was placed upon a decision of a three-Judge Bench in
Balram Singh v. State of Punjab [Balram Singh v. State
of Punjab, (2003) 11 SCC 286 : 2004 SCC (Cri) 149] . In
Balram Singh [Balram Singh v. State of Punjab, (2003)
11 SCC 286 : 2004 SCC (Cri) 149] , the three-Judge
Bench of this Court rejected the contention with regard
to the delay in transmitting the FIR to the Magistrate, on
the ground that : (SCC p. 291, para 10)
Patna High Court CR. APP (DB) No.131 of 1996 dt.13-05-2026
"10. ... while considering the
complaint in regard to the delay in the FIR
reaching the jurisdictional Magistrate, we will
have to also bear in mind the creditworthiness
of the ocular evidence adduced by the
prosecution and if we find that such ocular
evidence is worthy of acceptance, the element of
delay in registering a complaint or sending the
same to the jurisdictional Magistrate by itself
would not in any manner weaken the
prosecution case."
65. In State of Rajasthan v. Daud Khan [State
of Rajasthan v. Daud Khan, (2016) 2 SCC 607 : (2016) 1
SCC (Cri) 793] , this Court referred to Brahm Swaroop
[Brahm Swaroop v. State of U.P., (2011) 6 SCC 288 :
(2011) 2 SCC (Cri) 923] and interpreted the word
"forthwith" appearing in Section 157(1) of the Code, as
follows : (Daud Khan case [State of Rajasthan v. Daud
Khan, (2016) 2 SCC 607 : (2016) 1 SCC (Cri) 793] , SCC
p. 619, para 26)
"26. ... The purpose of the
"forthwith" communication of a copy of the FIR
to the Magistrate is to check the possibility of its
manipulation. Therefore, a delay in transmitting
the special report to the Magistrate is linked to
the lodging of the FIR. If there is no delay in
lodging an FIR, then any delay in
communicating the special report to the
Magistrate would really be of little consequence,
since manipulation of the FIR would then get
ruled out. Nevertheless, the prosecution should
explain the delay in transmitting the special
Patna High Court CR. APP (DB) No.131 of 1996 dt.13-05-2026
report to the Magistrate. However, if no
question is put to the investigating officer
concerning the delay, the prosecution is under
no obligation to give an explanation. There is no
universal rule that whenever there is some delay
in sending the FIR to the Magistrate, the
prosecution version becomes unreliable. In
other words, the facts and circumstances of a
case are important for a decision in this
regard."
66. Therefore, the learned Additional Advocate
General for the State may be right, in theory, that a delay
in transmission of the FIR to the court, may not, per se,
be fatal, without anything more. But in the case on hand,
the delay was not small. The FIR said to have been
registered on 8-3-2012 was received by the Court of the
Chief Judicial Magistrate on 13-3-2012. It is true that no
question was put in cross-examination to the
investigating officer about this delay.
67. But we have found that the evidence of
PWs 1 to 3 is untrustworthy, particularly on the
question of the origin and genesis of the first
information report. Therefore the inordinate delay in
the FIR reaching the jurisdictional court assumes
significance. We agree that the word "forthwith" in
Section 157(1) of the Code is to be understood in the
context of the given facts and circumstances of each
case and a straitjacket formula cannot be applied in
all cases. But where ocular evidence is found to be
unreliable and thus unacceptable, a long delay has to
be taken note of by the court. The mandate of Section
Patna High Court CR. APP (DB) No.131 of 1996 dt.13-05-2026
157(1) of the Code being clear, the prosecution is
expected to place on record the basic foundational
facts, such as, the officer who took the first
information report to the jurisdictional court, the
authority which directed such a course of action and
the mode by which it was complied. Explaining the
delay is a different aspect than placing the material
in compliance of the Code."
32. The extra judicial confession and so called recovery
is also sans any objective material to support the allegation.
33. Thus, the allegation cannot be sustained in view of the
delay in lodging the FIR, the tenuous connection between the death
and the missing of the boy, lack of objective material to support the
confession leading to recovery, limitations of confession leading to
recovery and impossibility of fastening the liability under Section
106 upon the accused.
34. For the reason stated above and in the light of the
aforesaid judgments, we do not agree with the findings made by the
learned trial court. We find that the impugned judgment of conviction
and order of sentence does not stand to scrutiny, hence the same
requires interference. Thus the appellants deserve to be acquitted of
the charges levelled against them.
35. Accordingly, the appeal is allowed and the
judgment of conviction dated 08.02.1996 and order of
sentence dated 13.02.1996 passed by the learned
Patna High Court CR. APP (DB) No.131 of 1996 dt.13-05-2026
Additional Sessions Judge-I, Katihar in Sessions Trial No. 188 of
1994, arising out of Amdabad P.S. Case No. 06 of 1994 (G.R. No.
187 of 1994), whereby the appellants have been convicted under
Sections 302, 120B and 201 of Indian Penal Code and appellant
no. 3 has also been convicted under Section 364 IPC are set aside.
Consequently, the appellants of the present appeal are acquitted of
the charges levelled against them.
36. If the appellants are in jail, they shall be released
forthwith, if not required in any other case. Their bail bonds are
discharged.
37. The lower court records be sent to the concerned
court.
38. Patna High Court Legal Services Committee is
directed to pay Rs. 10,000/- to learned amicus curiae for the
appellants who has assisted this Court in the matter.
(Ansul, J)
I agree
amitkr/- ( Nani Tagia, J)
AFR/NAFR NAFR
CAV DATE 11.02.2026
Uploading Date 14.05.2026
Transmission Date 14.05.2026.
