[Cites 9, Cited by 0]

Patna High Court

Munshi Yadav And Anr vs State Of Bihar on 13 May, 2026

    IN THE HIGH COURT OF JUDICATURE AT PATNA
               CRIMINAL APPEAL (DB) No.130 of 1999
======================================================
1. Munshi Yadav, son of Sri Budhan Yadav, resident of village Bisar, P.S.
   Mofassil, District Gaya
2. Baliraj Yadav, son of Sri Budhan Yadav, resident of village Bisar, P.S.
   Mofassil, District Gaya


                                                           ... ... Appellant/s
                                  Versus
STATE OF BIHAR

                                          ... ... Respondent/s
======================================================
Appearance :
For the Appellant/s    :      Mr.Ashwani Kumar Sinha, Advocate
For the Respondent/s   :      Mr.Satya Narayan Prasad, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE NANI TAGIA
        and
        HONOURABLE MR. JUSTICE ANSUL
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ANSUL)

 Date : 13-05-2026
            Heard the learned counsel for the appellants as well as

the learned counsel for the State.

            2. In the instant appeal, the appellants have challenged

the judgment of conviction and order of sentence dated 31.03.1999

passed by the learned 3rd Additional Sessions Judge, Gaya in

Sessions Trial No. 282 of 1992/41 of 1998, whereby the appellants

have been convicted under Section 304 Part-I of Indian Penal

Code and sentenced to undergo rigorous imprisonment for life.

            3. As per the FIR, the informant namely, Chander

Yadav, gave his statement on 08.06.1990 at Pilgrim Hospital. He

alleged that on 04.06.1990 on Monday he was washing his ox in
 Patna High Court CR. APP (DB) No.130 of 1999 dt.13-05-2026
                                           2/15




       the fallow land of Budhan Yadav. Munsi Yadav came and started

       abusing him as to why he was washing his ox in his field. He

       replied that he is only washing his ox in their field and not taking

       away their field. Heated argument took place between them.

       Meanwhile, the informant's mother who is aged about 60 years old

       came and tried stopping the accused persons from abusing. On

       this Budhan Yadav, abused and asked to assault her whereafter

       Munsi Yadav picked stone and hit her on head due to which she

       fell down. Thereafter Baliraj Yadav assaulted her with a stone on

       chest. Budhan Yadav exhorted to finish her. On alarm raised by the

       informant, Sitaram Yadav P.W. 2, took up his mother. Meanwhile,

       villagers gathered. On this statement an FIR bearing Gaya P.S.

       Case No. 670 of 1990 was instituted. Later, mother of the

       informant succumbed to the injuries and died on 08.06.1990

       around 10:30 PM and her postmortem was conducted on

       09.06.1990

at 10:30 AM.

4. After investigation, police submitted charge-sheet

under Section 337, 323, 304 of the Indian Penal Code against the

accused persons. Thereafter, cognizance for the offence was taken.

Vide order dated 18.12.1995 charges were framed against the

accused persons and the same was read over and explained to them

in Hindi, to which they pleaded not guilty and claimed to be tried. Patna High Court CR. APP (DB) No.130 of 1999 dt.13-05-2026

5. During the course of trial, altogether five witnesses

were examined in support of the prosecution case, who are as

under: -

             P.W.-1                   Chander Yadav (Informant)
             P.W.-2                       Sita Ram Yadav
             P.W.-3                          Gopal Sao
             P.W.-4                     Dr. Kapil Deo Prasad
             P.W.-5                        Birendra Singh

On behalf of defence, one witness namely Babuchand

Yadav was examined and Court Witness namely Indrajit Singh

was also examined.

6. Apart from the oral evidences, documentary evidence

was also exhibited on behalf of the prosecution, which are as

follows: -

             Exhibit- 1                     Postmortem report
             Exhibit- 2                        Formal FIR
             Exhibit- 3                         Fardbeyan
             Exhibit-4                Letter No. 590 dated 4.11.1992

On behalf of the defence one document was exhibited,

which is as follows:-

Exhibit-A Signature of Anjali Tiwari on certificate

7. PW 1 Chander Yadav (informant) deposed and

supported the allegations made in the FIR in his chief examination. Patna High Court CR. APP (DB) No.130 of 1999 dt.13-05-2026

He stated that Munsi Yadav assaulted his mother on head with

stone and Baliram Yadav assaulted her on chest with stone. He

further stated that his statement was recorded at 08:00 AM in the

morning and on the very same day at 10:00 PM his mother passed

away. In para 5 he stated that his mother became unconscious and

on the same date i.e. 04.06.1990, when the said occurrence is

alleged to have taken place then he went to the police station and

told the Officer-in-Charge about the occurrence. In para 22 he

again stated that the day on which his mother was assaulted at 10-

11 PM he had gone to the police station alone. He states that his

mother was not taken inside the police station but kept outside and

gave all the information to the Officer-in-Charge but they had not

given anything in writing. He further stated that the Officer-in-

Charge did not read over anything to him but he has given his LTI.

He denied the suggestion that he had given a written application to

the Officer-in-Charge but he was hiding the same because he has

not given the name of Budhan Yadav. In para 24 he states that he

did not give any written Sanha. In para 28 he stated that he had not

shown the stone by which his mother was assaulted to the Officer-

in-Charge. He stated that on 04.06.1990 statement of his mother

was not recorded as she was unable to speak. He again in para 31

states that he had given an application in the Court of Chief Patna High Court CR. APP (DB) No.130 of 1999 dt.13-05-2026

Judicial Magistrate that the Officer-in-Charge had not written his

statement in the Sanha correctly. He states that in FIR he had

mentioned that on his raising Hulla Kailash Yadav, Lekha Yadav

and Vikash Yadav had come.

8. P.W. 2 is Sitaram Yadav. He stated that Munsi Yadav

had assaulted Somari Devi (deceased) on head and thereafter

Baliram Yadav had assaulted deceased on chest. In para 6 he

denied the suggestion that there was exchange of land between

him and Budhan Yadav. He stated that argument had started before

he reached there and there were no bricks and stone near the spot.

He stated that blood had fallen from the body of Somari Devi, the

deceased which was present on her clothes also and some blood

had fallen on earth also. He stated that his statement was recorded

five days after the occurrence by the police and that he had stated

that he was taking bath near the hand-pump from where he went to

the place of occurrence. He stated that he had not stated before

Investigating Officer that he has not seen as to who assaulted with

stone as bricks and stones were thrown from both side and she

might had sustained injuries due to stone thrown by somebody. In

para 22 he stated that he has not informed the Investigating Officer

that one Bhola Yadav asked to file case then Chander Yadav stated

that they will lodge Sanha but they will not contest the case. He Patna High Court CR. APP (DB) No.130 of 1999 dt.13-05-2026

also denied suggestion that he had not mentioned Budhan Yadav,

Munsi Yadav and Balram Yadav. Like PW 1 he denied the

suggestion that Munsi Yadav was working in Gaya Engineering

Works and that Budhan Yadav was not even in the village. He

denied the issue of exchange deed with Budhan Yadav.

9. PW 3 was tendered for cross-examination.

10. The postmortem of the deceased was conducted by

PW 4 Doctor Kapildeo Prasad. He found one abrasion on scalp

over left parietal region of head and on dissection, underlying soft

tissues were found infiltrated with blood. On removal of scalp,

blood clots were found diffused in both parietal regions of the

skull on dissection. There was depressed fracture of left fronto

parietal region. He also found a bruise over right side of the chest

and second and third rib were found fractured. He stated that the

age of the deceased was sixty years. He stated that injuries were

ante-mortem and grievous in nature and were caused by hard and

blunt object, may be stone. He further stated that the cause of

death was coma, compression and shock due to aforesaid ante-

mortem injuries.

11. PW 5 is a formal witness who proved the

handwriting of the officer Incharge, Gopal Singh. He denied any

knowledge of the occurrence.

Patna High Court CR. APP (DB) No.130 of 1999 dt.13-05-2026

12. After the prosecution evidence, the defence was

given opportunity to examine their witnesses. Babuchand Yadav,

D.W. 1. was an employee in Gaya, he stated that on the date and

time of occurrence the appellant Munsi Yadav was on duty.

13. Indrajit Singh, an employee of Pilgrim Hospital,

Gaya, had proved the patient admission register of the Hospital

where he stated that on 04.06.1990 Somari Devi was admitted and

she died on 08.06.1990. He stated that as per the death column of

the said register, cause of death is shown as injury on head.

14. It is further stated that Budhan Yadav was acquitted

by the court below whereas Munsi Yadav and Baliram Yadav alias

Baliraj Yadav were convicted.

15. We have heard and considered the submission of the

parties and perused the record. The record would show that the

said occurrence is of 04.06.1990. The consistent case of

prosecution through the informant is that on that day itself he went

to the police station and lodged Sanha and he had informed the

Officer-in-Charge about the occurrence. P.W. 1 clearly states that

though he had not given any written report to the Officer in-

Charge but he had given his thumb impression on a paper. In para

22 the informant has specifically stated that on the date when his

mother had sustained injuries he had gone alone to police station at Patna High Court CR. APP (DB) No.130 of 1999 dt.13-05-2026

around 10-11 AM. Sitaram Yadav, PW-2, in para 18, had stated

that blood had fallen from the body of the deceased on the land.

He further stated that his statement was recorded four to five days

after the said occurrence. He has denied the statement that when

Budhan Yadav asked to file a case then Chander Yadav stated that

he wishes to lodge Sanha and he would not contest the case. This

has come in the statement of PW 2 in para 22.

16. The records thus clearly establish that the initial

version of the case was given to the police on 04.06.1990 and there

is doubt as to whether it contained the name of the appellants.

Suggestions have been given to the witnesses in this regard but

deposition of Investigating Officer was vital to take contradiction

with regard to the statements made by the witnesses when their

attention was drawn to their statement made before police. The

Investigating Officer has not been examined in this case. Non-

examination of Investigating Officer has therefore resulted in

failure to prove the place of occurrence. It has also robbed the

defence of the opportunity to establish the earlier contradictory

statement of the witnesses taking recourse to Section 145 and 155

of the Evidence Act in order to discredit the witnesses. Patna High Court CR. APP (DB) No.130 of 1999 dt.13-05-2026

17. In the case of V.K. Mishra v. State of Uttarakhand,

reported in (2015) 9 SCC 588, the Hon'ble Supreme Court has

held at para 19 that:-

"19. Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross-examination. The attention of witness is drawn to that part and this must reflect in his cross-examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the investigating officer who again by referring to the Patna High Court CR. APP (DB) No.130 of 1999 dt.13-05-2026

police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo motu make use of statements to police not proved in compliance with Section 145 of the Evidence Act that is, by drawing attention to the parts intended for contradiction."

18. The occurrence is of 04.06.1990. Fardbeyan was

given on 08.06.1990 and the FIR came to be registered on

09.06.1990. The deceased had sustained injury on her head and

chest as per the postmortem report. The attention of PW-2 has

been drawn to his statement made before police that there was

brick-batting from both the side. However, the absence of

Investigating Officer has not allowed the defence to get the said

statement confirmed.

19. Furthermore, the record shows that this is an

admitted position that the earliest version of the occurrence came

out on 04.06.1990 but the same is not on record. Moreover, the

Investigating Officer is not there to lend credence to the

prosecution case with regard to the place of occurrence and the Patna High Court CR. APP (DB) No.130 of 1999 dt.13-05-2026

earliest version. This is a classic case where the absence of

Investigating Officer has clearly caused prejudice to the defene

and thus non-examination of Investigating Officer in this case has

to be held to the fatal to the case of prosecution.

20. In the case of Munna Lal v. State of U.P., reported

in (2023) 18 SCC 661 the Hon'ble Supreme Court has held at para

39 and 40 that:-

"39. Secondly, though PW 4 is said to have reached the place of occurrence at 1.30 p.m. on 5-9- 1985 and recovered a bullet in the blood oozing out from the injury at the hip of the dead body, no effort worthy of consideration appears to have been made to seize the weapons by which the murderous attack was launched. It is true that mere failure/neglect to effect seizure of the weapon(s) cannot be the sole reason for discarding the prosecution case but the same assumes importance on the face of the oral testimony of the so-called eyewitnesses i.e. PW 2 and PW 3, not being found by this Court to be wholly reliable. The missing links could have been provided by the investigating officer who, again, did not enter the witness box. Whether or not non-examination of a witness has caused prejudice to the defence is essentially a question of fact and an inference is required to be drawn having regard to the facts and circumstances obtaining in each case. The reason why the investigating officer could not depose as a witness, as told by PW 4, is that he had been sent for training. It was not shown that the investigating officer under no circumstances could have left the course for Patna High Court CR. APP (DB) No.130 of 1999 dt.13-05-2026

recording of his deposition in the trial court. It is worthy of being noted that neither the trial court nor the High Court considered the issue of non-examination of the investigating officer.

40. In the facts of the present case, particularly conspicuous gaps in the prosecution case and the evidence of PW 2 and PW 3 not being wholly reliable, this Court holds the present case as one where examination of the investigating officer was vital since he could have adduced the expected evidence. His non- examination creates a material lacuna in the effort of the prosecution to nail the appellants, thereby creating reasonable doubt in the prosecution case."

21. The victim is said to have been treated at Pilgrim

Hospital. A witness has come to prove the patient admission

Pilgrim Hospital has been brought on record. The only material

regarding the death of the deceased is the oral allegation of the

witnesses and the postmortem report. What transpired between

04.06.1990 to 08.06.1990 in terms of treatment of the deceased is

nowhere on record. The issue regarding this gap is enhanced in

view of absence of initial version as well as the age of the

deceased and the allegation that it may have resulted from brick

batting between two groups of people.

Patna High Court CR. APP (DB) No.130 of 1999 dt.13-05-2026

22. It is further noted that the FIR has not been promptly

lodged. Apart from the fact that the initial version is not on record

the FIR available to the court is the version dated 08.06.1990

which was lodged after four days of delays.

23. The Hon'ble Supreme Court, on a number of

occasions has discussed the importance of prompt lodging of FIR.

24. In the Case of Thulia Kali v. State of T.N., reported

in (1972) 3 SCC 393 Hon'ble Supreme Court has held at para 12

that:-

"12. .....First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eyewitnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated Patna High Court CR. APP (DB) No.130 of 1999 dt.13-05-2026

account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained......."

25. Similarly, in the case of Meharaj Singh v. State of

U.P. [Meharaj Singh v. State of U.P., reported in (1994) 5 SCC 188

Hon'ble Supreme Court has held at para 12 that:-

"12. FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story....."

26. The situation is further complicated due to the

absence of Investigating Officer. Only his presence could have

proved the place of occurrence as well as defence version and also Patna High Court CR. APP (DB) No.130 of 1999 dt.13-05-2026

the initial version. His presence is thus vital and in his absence

there is no way to ascertain the truth of the allegation levelled.

27. Accordingly, the appeal is allowed and the judgment

of conviction and order of sentence dated 31.03.1999 passed by

the learned 3rd Additional Sessions Judge, Gaya in Sessions Trial

No. 282 of 1992/41 of 1998, whereby the appellants have been

convicted under Section 304 Part-I of the Indian Penal Code and

sentenced to undergo rigorous imprisonment for life is set aside.

Consequently, the appellants of the present appeal are acquitted of

the charges levelled against them.

28. If the appellants are in jail, they shall be released

forthwith, if not required in any other case. The appellants are

discharged from the liabilities of their bail bond.

29. The lower court records be sent to the concerned

court.




                                                        (Ansul, J)
                                           I agree


amitkr/-                                              (Nani Tagia, J)
AFR/NAFR                NAFR
CAV DATE                26.02.2026
Uploading Date          13.05.2026
Transmission Date       13.05.2026