Patna High Court - Orders
Suresh Prasad Azad @ Suresh Yadav vs The State Of Bihar on 8 October, 2025
Author: Mohit Kumar Shah
Bench: Mohit Kumar Shah
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No. 731 of 2025
Arising Out of PS. Case No.-817 Year-1999 Thana- COMPLAINT CASE - ROSERA
District- Samastipur
======================================================
Yogeshwar Yadav Son of Late Jagdev Yadav Resident of Village- Mahuli,
P.S.- Rosera, District- Samastipur
... ... Appellant/s
Versus
1. The State of Bihar
2. Suresh Yadav Son of Bindeshwari Yadav Resident of Village- Mahuli, P.S.-
Rosera, Distt.- Samastipur
... ... Respondent/s
======================================================
with
CRIMINAL REVISION No. 368 of 2025
Arising Out of PS. Case No.-817 Year-1999 Thana- SAMASTIPUR COMPLAINT CASE
District- Samastipur
======================================================
Suresh Prasad Azad @ Suresh Yadav S/o- Late Vindeshwari Prasad @ Late
Bindeshwari Yadav Village- Mahuli Ps- Rosera Dist- Samastipur
... ... Petitioner/s
Versus
1. The State of Bihar
2. Yugeshwar Yadav S/o- Late Jagdev Yadav Village- Mahuli Ps- Rosera Dist-
Samastipur
3. Bhushan Yadav @ Bhushan Prasad Yadav S/o- Late Ramkishore Yadav
Village- Mahuli Ps- Rosera Dist- Samastipur
4. Nepal Yadav @ Arvind Kumar Yadav S/o- Late Ramkishore Yadav Village-
Mahuli Ps- Rosera Dist- Samastipur
5. Jivachh Yadav S/o- Late Ramotar Yadav Village- Mahuli Ps- Rosera Dist-
Samastipur
6. Sushila Devi @ Kaushalya Devi @ Shakuntala Devi W/o- Yugeshwar Yadav
Village- Mahuli Ps- Rosera Dist- Samastipur
7. Shankar Yadav S/o- Late Ramotar Yadav Village- Mahuli Ps- Rosera Dist-
Samastipur
8. Muneshwar Yadav @ Bhuneshwar Yadav S/o- Late Brahmdev Yadav
Village- Mahuli Ps- Rosera Dist- Samastipur
9. Mahendra Yadav S/o- Late Ramotar Yadav Village- Mahuli Ps- Rosera Dist-
Samastipur
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (SJ) No. 775 of 2025
Arising Out of PS. Case No.-817 Year-1999 Thana- COMPLAINT CASE - ROSERA
District- Samastipur
======================================================
Patna High Court CR. APP (SJ) No. 731 of 2025(8) dt.08-10-2025
2/17
Jibachh Yadav S/o Late Ramavtar Yadav Resident of vill - Mahuli, P.O.-
Mangalgarh, P.S.- Rosera, Distt.- Samastipur
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (SJ) No. 814 of 2025
Arising Out of PS. Case No.-817 Year-1999 Thana- SAMASTIPUR COMPLAINT CASE
District- Samastipur
======================================================
1. Bhushan Yadav @ Bhushan Prasad Yadav Son of Late Ram Kishore Yadav
Resident of Village- Mahuli, P.S.- Rosera, District- Samastipur
2. Nepal Yadav @ Arvind Kumar Yadav Son of Late Ram Kishore Yadav
Resident of Village- Mahuli, P.S.- Rosera, District- Samastipur
3. Susheela Devi @ Kaushalya Devi @ Shakuntala Devi Wife of Yogeshwar
Yadav Resident of Village- Mahuli, P.S.- Rosera, District- Samastipur
4. Shankar Yadav Son of Late Ramotar Yadav Resident of Village- Mahuli,
P.S.- Rosera, District- Samastipur
5. Muneshwar Yadav @ Bhuneshwar Yadav Son of Brahmadev Yadav Resident
of Village- Mahuli, P.S.- Rosera, District- Samastipur
6. Mahendra Yadav Son of Late Ramotar Yadav Resident of Village- Mahuli,
P.S.- Rosera, District- Samastipur
... ... Appellant/s
Versus
1. The State of Bihar
2. Suresh Yadav Son of Bindeshwari Yadav Resident of Village- Mahuli, P.S.-
Rosera, District- Samastipur
... ... Respondent/s
Appearance :
(In CRIMINAL APPEAL (SJ) No. 731 of 2025)
For the Appellant/s : Mr. N.K. Agrawal, Sr. Adv.
Mr. Saroj Kumar Choudhary, Adv.
Mr. Yatindra Narayan, Adv.
For the State : Mr. Abhimanyu Sharma, APP
For the Informant Mr. Ranjeet Kumar, Adv.
(In CRIMINAL REVISION No. 368 of 2025)
For the Petitioner/s : Mr.Sumit Kumar Jha, Adv.
For the Respondent/s : Mr.Harendra Prasad, Adv.
(In CRIMINAL APPEAL (SJ) No. 775 of 2025)
For the Appellant/s : Mr. Ajay Kumar Thakur, Adv.
Ms. Vaishnavi Singh, Adv.
Mr. Ritwik Thakur, Adv.
Mr. Yatindra Narayan, Adv.
For the State : Mr.Mukeshwar Dayal, APP
(In CRIMINAL APPEAL (SJ) No. 814 of 2025)
For the Appellant/s : Mr. Pratik Mishra, Adv.
Mr. Vatsal Vishal, Adv.
For the State : Mr. Abhimanyu Sharma, Adv.
======================================================
Patna High Court CR. APP (SJ) No. 731 of 2025(8) dt.08-10-2025
3/17
CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
and
HONOURABLE JUSTICE SMT. SONI SHRIVASTAVA
ORAL ORDER
(Per: HONOURABLE JUSTICE SMT. SONI SHRIVASTAVA)
8 08-10-2025All the appeals are being taken up together as they arise out of common judgment and order of conviction and sentence.
2. Heard learned counsel for the parties at length on the issue of suspension of sentence and grant of bail qua the appellants.
3. The present appeals have been preferred against the judgment of conviction and order of sentence dated 30.01.2025 and 05.02.2025 respectively passed by the court of learned District and Additional Sessions Judge-II, Rosera, Samastipur in Sessions Trial No. 104 of 2002 [arising out of Complaint Petition (Protest Petition) No. 817 of 1999], CIS No. 233 of 2014] whereby and whereunder all the aforesaid appellants have been convicted under Sections 304/149, 120B of the Indian Penal Code (hereinafter referred to as 'IPC'), while appellant Yogeshwar Yadav has further been convicted under Section 148 of the IPC and Section 27 of the Arms Act. All the appellants have been sentenced to undergo rigorous imprisonment for ten years with fine of Rs. 20,000/- each, separately for conviction under Section 304/149 and 120B of the IPC, respectively, while Patna High Court CR. APP (SJ) No. 731 of 2025(8) dt.08-10-2025 4/17 the appellant Yogeshwar Yadav has been further sentenced to undergo rigorous imprisonment for three years under Section 148 of the IPC with fine of Rs. 5,000/- and rigorous imprisonment for seven years under Section 27 of the Arms Act with fine of Rs. 10,000/-. The appellants have also been sentenced to undergo rigorous imprisonment for six months in case of default of payment of fine. However, all the sentences have been directed to run concurrently.
4. It is clarified at the outset that although all these appeals are Single Judge appeals, however they are being considered by this Court as they have been tagged, by an order dated 28.04.2025 passed in Cr. Appeal (SJ) No. No. 775 of 2025, along with Cr. Appeal (DB) No. 349 of 2025, arising out of a cross case for the same occurrence, with the approval of the then Hon'ble the Acting Chief Justice and further by an order dated 25.06.2025, the other appeals along with one Cr. Revision No. 368 of 2025 (filed by the complainant Suresh Yadav against acquittal under Section 302 of the IPC and for enhancement of sentence) have been directed to be tagged together with Cr. Appeal (D.B.) No. 349 of 2025. All the present appeals were taken up for considering the prayer for suspension of sentence and grant of bail together with the aforesaid Cr. Appeal (DB) 349 of 2025, however, a separate order is being passed in the Patna High Court CR. APP (SJ) No. 731 of 2025(8) dt.08-10-2025 5/17 present appeals as they arise out of a different Sessions Trial. However, so far as Cr. Revision No. 368 of 2025 is concerned, no order is required to be passed at this stage and the same would be heard along with all the connected appeals at the time of final hearing.
5. The records of these appeals have been placed before this Court to consider the prayer of the appellants for suspension of their sentence and release on bail during the pendency of the appeal.
6. The present case arises out of a complaint cum protest petition filed by the complainant Suresh Yadav in connection with Rosera P.S. Case No. 213 of 1998 dated 15.11.1998, arising out of Complaint Case No. 327 of 1998 dated 23.10.1998 which resulted in submission of a final form dated 28.02.1999, finding the case to be false as against the accused persons who are the present appellants. The case of the prosecution is that the appellant Yogeshwar Yadav, who is a neighbour of the complainant, is of a questionable character keeping connections with other criminals and appellant Jibachh Yadav, the Up-Pramukh provides him with political protection. It is alleged that the present complainant and his co-villager Ramakant Akela, an Advocate and a member of Bhartiya Communist Party used to protest against the illegal and Patna High Court CR. APP (SJ) No. 731 of 2025(8) dt.08-10-2025 6/17 improper acts of accused Yogeshwar Yadav and Jibachh Yadav, as a result of which these accused persons started disturbing Ramakant Akela by putting a flag on his land. The nephew of Yogeshwar Yadav, namely Bhushan Yadav and Nepal Yadav had earlier attacked Umesh Kumar Keshri, the brother of Ramakant Akela for which Complaint Case No. 193 of 1998 is pending. It is further alleged that under a well planned conspiracy, hatched in connivance with all the accused persons, Yogeshwar Yadav took a decision to kill his daughter in order to falsely implicate the aforesaid persons and in pursuance thereof Yogeshwar Yadav, in collusion with all the other accused persons fired gunshot at his daughter aged about 4 to 5 years, who was a Polio patient. The complainant had rushed on the sound of gunshot firing to find the daughter of the appellant, Yogeshwar Yadav having fallen on the ground and all the accused persons were stating that now their work has been done and their enemies would be finished. The complainant informed the police by way of telegram but owing to the police inaction, the complaint petition was filed on 23.10.1998 and this complaint, in verbatim, forms a part of the present Complaint Case No. 817 of 1999 filed on 21.11.1998.
7. It has been jointly submitted on behalf of the counsels appearing for the appellants that for the same incident, Patna High Court CR. APP (SJ) No. 731 of 2025(8) dt.08-10-2025 7/17 a substantive police case bearing Rosera P.S. Case No. 109 of 1998 was filed by the present appellant Yogeshwar Yadav, who is the informant of the said case, for the offences under Sections 302/149 and other analogous Sections of the IPC and Section 27 of the Arms Act against Ramakant Akela and other accused persons for causing death of the daughter of the appellant Yogeshwar Yadav by way of gunshot injury and the said Rosera P.S. Case No. 109 of 1998 has finally resulted in conviction of the accused persons vide judgment dated 30.01.2025 in connection with Sessions Trial No. 465 of 2000 and the accused have been sentenced to imprisonment for life thereunder. Thereafter, the convicts of Sessions Trial No. 465 of 2000 arising out of Rosera P.S. Case No. 109 of 1998 have filed Cr. Appeal (DB) No.349 of 2025, with which the present appeals in question was ordered to be tagged. The present complaint, however, finds its origin in an earlier complaint case no. 327 of 1998 which was forwarded to the police under Section 156 (3) of the Cr.P.C. whereupon Rosera P.S. Case No. 213 of 1998 was instituted but after investigation, the police not only submitted a final form finding the case to be false but also recommended for prosecution of the informant Suresh Yadav under Section 182/211 of the IPC. The present Complaint Case No. 817 of 1999 is in the form of protest petition against the final form Patna High Court CR. APP (SJ) No. 731 of 2025(8) dt.08-10-2025 8/17 submitted by the police, which has been treated as a complaint for proceeding therewith.
8. It has been argued on behalf of the appellants that as a matter of fact, none of the prosecution witnesses are eye witness to the occurrence and even the complainant Suresh Yadav (P.W.8), according to his own evidence, has also not seen the occurrence as he claims to have come to the place of occurrence on hearing the sound of gunshot to find the deceased girl having fallen on the ground. There is no reference to the presence of any other witness at the relevant time at the place of occurrence. It is further contended that absolutely false and concocted story has been put forth by way of the complaint case by the complainant Suresh Yadav, who has a close nexus with Ramakant Akela, the main accused of the case filed on behalf of the appellants and he has been set up by the said Ramakant Akela and others to file the present complaint which is totally unbelievable, inasmuch as the appellant Yogeshwar Yadav who is said to have shot the deceased girl is her own father while the other accused persons (appellants) are all members of the family of the deceased, including even mother of the deceased Susheela Devi @ Kaushalya Devi who is also one of the appellants in Cr. Appeal (DB) No. 814 of 2025. Since no evidence could be collected during the course of investigation, the police had Patna High Court CR. APP (SJ) No. 731 of 2025(8) dt.08-10-2025 9/17 submitted a final form in the earlier complaint, contents of which are absolutely same as that of the present complaint. It is also submitted that the appellants have remained on bail during trial without misusing the privilege thereof and have been in custody since 30.01.2025 i.e. the date of the judgment.
9. Mr. N.K. Agrawal, learned senior counsel appearing on behalf of the appellant Yogeshwar Yadav has submitted that the complainant Suresh Yadav is closely connected with Ramakant Akela (the main accused of Rosera P.S. Case No. 109 of 1998) and he has been setup by the later to file the present complaint in order to save the skin of the real miscreants. He has also pointed out that while the date of occurrence is 20.06.1998, the present complaint has been filed on the basis of an earlier complaint dated 23.10.1998 and although a reference has been made to an information having been sent earlier on 22.06.1998 to the Superintendent of Police by the complainant Suresh Yadav, no such documents have been brought on record in proof thereof, rather the substantive FIR was the one lodged on behalf of the appellant Yogeshwar Yadav resulting in conviction of the accused persons under Section 302 of the IPC. It has been further submitted that amongst the witnesses examined on behalf of the prosecution, while P.W. 2 has deposed for the first time in the court, as admitted in his Patna High Court CR. APP (SJ) No. 731 of 2025(8) dt.08-10-2025 10/17 evidence, thereby diminishing the value of his evidence, the other witnesses who are trying to give an eye witness account are also merely chance witnesses whose presence does not seem probable at the time of occurrence which is at 11:00PM in the night. Learned senior counsel has also submitted that the witnesses named in the complaint have not been examined and so far as the appellant Yogeshwar Yadav is concerned, he is a person over 70 years of age and has already lost his daughter for which he has filed a substantive FIR.
10. Mr. Ajay Kumar Thakur, learned counsel for the appellant Jibachh Yadav, besides other grounds already canvassed, has submitted that out of the witnesses examined on behalf of the prosecution, P.Ws. 3, 5 and 6 have not named the appellant at all and since the very incident is stated to have taken place in the courtyard of the house of the appellants, according to the case of the prosecution, it is impossible to believe that the witnesses had overheard the reason for the occurrence and had also seen the said occurrence happen. It has further been submitted that the very fact that the trial court has convicted the accused persons in the case lodged by the appellant Yogeshwar Yadav under Section 302/149 of the IPC, the conviction of the present appellants is bad in law and the said judgment also suffers from perversity. Further, the appellant Patna High Court CR. APP (SJ) No. 731 of 2025(8) dt.08-10-2025 11/17 Jibachh Yadav is 76 years old man with no allegation of having resorted to any firing. He has also argued that the doctor who conducted the postmortem examination of the dead body of the deceased has not been examined in this case nor has the Postmortem Report been properly exhibited.
11. Mr. Pratik Mishra appearing in Cr. Appeal (DB) No. 814 of 2025 on behalf of the appellants Bhushan Yadav and others has also, besides arguing other grounds, pointed out that out of the two versions of the alleged incident, the version put forth by the present appellants was not only found correct by the Investigating Agency but has also resulted in conviction of the accused persons, while the case of the complainant was found false during the investigation, hence had proceeded upon protest petition being treated as complaint. He has referred to paragraph no. 8 of the judgment rendered in the case of State of M.P. Vs. Mishri Lal, reported in (2003) 9 SCC 26, in order to submit that the rational behind court cases being tried together by the same court is to avoid conflicting judgments over the same incident but in the present case the trial court trying both the cases together has committed illegality by convicting these appellants under Section 304/149 of the IPC, when the accused persons of the case filed by the appellants also got convicted under Section 302/149 of the IPC. He has also submitted that Patna High Court CR. APP (SJ) No. 731 of 2025(8) dt.08-10-2025 12/17 the witnesses have not talked about the presence of each other during the trial and P.W. 6 rather admits presence of Ramakant Akela, who was armed with pistol along with others at the place of occurrence and in cross examination, he has rather stated that while the pistol was in the hand of Ramakant Akela, he did not see the incident of firing but saw the appellant Yogeshwar Yadav and his wife weeping. The counsel has also made a reference to paragraph no. 16, 17, 18 and 20 of the evidence of the complainant P.W. 8 to show that he is not definite of the contents of the complaint petition and upon specific question with regard to the correctness of the statements in the complaint, the witness had kept silent. It has been further submitted that while the appellant no. 3, is a lady and also mother of the deceased, the other appellants 5 and 6 are also old aged persons.
12. Per contra, learned APP for the State and Mr. Ranjeet Kumar, learned counsel appearing for the complainant have strongly opposed the prayer for suspension of sentence and grant of bail. Learned counsel for the complainant has specifically submitted that the prosecution witnesses, especially P.Ws. 1, 2, 3, 4, and 8 have supported the case in capacity of eye witnesses and are consistent in their evidence with regard to the specific allegation of firing upon the appellant Yogeshwar Yadav. He has further submitted that the Investigating Agency Patna High Court CR. APP (SJ) No. 731 of 2025(8) dt.08-10-2025 13/17 had erroneously submitted final form in the case of the complainant despite the fact that six witnesses were also examined under Section 164 of the Cr.P.C. before the learned Magistrate which are also on record.
13. Having heard the learned counsel for the parties and having cursorily perused the evidence on record, we prima facie find that the present case is a cross case of Rosera P.S. Case No. 109 of 1998, filed by appellant Yogeshwar Yadav against accused Ramakant Akela and others for causing death of his daughter, giving rise to Sessions Trial No. 465 of 2000 which ultimately resulted in conviction of the accused persons under Sections 302/149 and other sections of the IPC. The FIR of Rosera P.S. Case No. 109 of 1998 and the charge-sheet have been brought on record as Exhibit-B and C by the defence. The complaint case giving rise to the impugned judgment also appears to have been filed after due thought and deliberation as the same has been lodged after substantial delay, hence this Court finds some force in the argument on behalf of the defence that the same could be with the purpose of saving the skin of the real perpetrators of crime by setting up the complainant and some other witnesses in support of the prosecution case. This argument also gains strength from perusal of the impugned judgment along with the records that out of eight prosecution Patna High Court CR. APP (SJ) No. 731 of 2025(8) dt.08-10-2025 14/17 witnesses, PWs-1,2,4 and 5 claim to be independent eye witnesses but at the same time, we also notice that they are all chance witnesses, who have tried to show their presence around the place of occurrence at 11:00PM in the night and upon cross- examination they have not been able to provide any substantial evidence in order to prove their presence at the place of occurrence. The law is well settled with regard to the evidentiary value of the chance witnesses to the effect that their evidence needs to be scrutinized with utmost care, such witness is required to adequately explain his presence at the place of occurrence and doubtful presence should be discarded, as has been held in the case of Manoj Vs. State of MP, reported in (2023) 2 SCC 353. We further find that PW-2 has deposed for the first time in court, PW-3 is an interested witness as he is the full brother of the complainant as also a chance witness, PW-6 is a hearsay witness and PW-8 is the complainant himself who admittedly is not an eye witness to the occurrence, even as per his own case.
14. It is also noticed from the records that while a charge sheet was submitted in the case filed by the present appellants, the FIR arising out of complaint case of the present complainant had resulted in filing of a final form finding the case to be false, as against the appellants. Moreover, the Patna High Court CR. APP (SJ) No. 731 of 2025(8) dt.08-10-2025 15/17 evidence of the prosecution witnesses giving lucid details of the presence of the appellants which they witnessed in the light of lantern and the conversation of the appellants being overheard by these witnesses from outside the courtyard of the house does not prima facie seem to be believable and acceptable. Further, the complainant himself has failed in establishing the reason for his presence at the place of occurrence. These facts coupled with the other vital inconsistencies make the oral evidence appear to be prima facie unsatisfactory for sustaining a conviction.
15. The very story of the prosecution of the father killing his own daughter in collusion and connivance of the other family members and that too, for a vague motive of implicating others, seems to be too far-fetched a proposition, hence leaving scope for element of doubt to creep in. The learned trial court, while stating that there is lack of evidence with regard to ingredients of Section 302 of the IPC, seems to have erroneously held the evidence sufficient to convict the appellants under Section 304/149 of the IPC on the basis of weak nature of evidence of chance witnesses coupled with the fact that the court was conscious that the present trial arises out of a delayed cross case proceeding on a protest petition and had on the same date ordered a conviction of accused persons u/s 302/149 IPC in the case filed by appellant Yogeshwar Yadav. Patna High Court CR. APP (SJ) No. 731 of 2025(8) dt.08-10-2025 16/17
16. Thus, taking a holistic view of the facts and circumstances of the present case as discussed hereinabove, considering the submissions made by the learned counsel for the appellants, taking into account the fact that prima facie there appears to be lack of credible evidence so as to prove the guilt of the appellants beyond all reasonable doubt, coupled with the inherently improbable nature of allegations, we find that the conviction of the appellants may not be sustainable, thus a case for suspension of sentence and grant of bail during the pendency of the appeal has been made out by the appellants.
17. Accordingly, we direct the suspension of order of sentence dated 05.02.2025 qua the appellants as also direct to release the appellants on bail, during the pendency of these appeals, on furnishing bail bonds of Rs.10,000/- (Rupees Ten Thousand) each with two sureties of the like amount each to the satisfaction of the learned District and Additional Sessions Judge-II, Rosera, Samastipur in Sessions Trial No. 104 of 2002 [arising out of Complaint Petition (Protest Petition) No. 817 of 1999), CIS No. 233 of 2014].
18. It is clarified that the observation made hereinabove are prima facie and tentative in nature for the purposes of consideration of the prayer of the appellants for suspension of sentence and grant of bail and shall not cause any Patna High Court CR. APP (SJ) No. 731 of 2025(8) dt.08-10-2025 17/17 prejudice to either of the parties at the time of hearing of the main appeal.
19. List these appeals along with the revision petition for hearing in their own turn.
(Mohit Kumar Shah, J) ( Soni Shrivastava, J) devendra/-
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