Patna High Court
Dinesh Das vs The State Of Bihar on 12 November, 2025
Author: Mohit Kumar Shah
Bench: Mohit Kumar Shah, Shailendra Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No. 555 of 2016
Arising Out of PS. Case No.-86 Year-1996 Thana- MAHUA District- Vaishali
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Dinesh Das S/o Yogendra Das R/o village- Mahua Singh Rai, P.S.- Mahua,
District- Vaishali
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
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with
CRIMINAL APPEAL (DB) No. 693 of 2016
Arising Out of PS. Case No.-86 Year-1996 Thana- MAHUA District- Vaishali
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Binod Das S/o Yogendra Das Resident of Village- Mahua Singh Rai, P.S. -
Mahua, District-Vaishali
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance:
(In CRIMINAL APPEAL (DB) No. 555 of 2016)
For the Appellant/s : Mr. Ram Shankar Das, Advocate
For the Respondent/s : Mr. Ajay Mishra, APP
(In CRIMINAL APPEAL (DB) No. 693 of 2016)
For the Appellant/s : Mr. Raj Shekhar, Advocate
Mr. Sanjay Kumar, Advocate
Mr. Ajeet Kumar, Advocate
Mr. Ram Shankar Das, Advocate
For the Respondent/s : Mr. Ajay Mishra, APP
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CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
and
HONOURABLE MR. JUSTICE SHAILENDRA SINGH
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH)
Date: 12-11-2025
The aforesaid appeals preferred under Section 374 (2) of
the Code of Criminal Procedure, 1973 (hereinafter referred to as
"the Cr.P.C.") arise out of the same judgment of conviction and
Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025
2/52
order of sentence dated 13.05.2016 and 16.05.2016 respectively,
hence the aforesaid appeals have been heard together and are
being disposed off by the present common judgment. By the
said judgment of conviction dated 13.05.2016, passed by the
learned Additional Sessions Judge-V, Vaishali at Hajipur
(hereinafter referred to as "the Ld. Trial Judge") in Sessions
Trial No. 348 of 1998 (arising out of Mahua P.S. Case No. 86 of
1996), the appellants have been convicted under Sections
302/149 of the Indian Penal Code (hereinafter referred to as the
'IPC') and have been sentenced to undergo rigorous
imprisonment for life with fine of Rs. 25,000/- each and in
default thereof they have been directed to undergo further
simple imprisonment for four months. All the sentences have
been directed to run concurrently.
2. At the outset it may be pointed out that as far as Devendra
Sah (one of the appellant of the first case, i.e. Criminal Appeal
(DB) No.555 of 2016) is concerned, a co-ordinate Bench of this
Court, in its order dated 09.02.2018, has noted the fact that the
Juvenile Justice Board vide letter no. 538 dated 31.7.2017 has
sent a report mentioning therein that the said Devendra Sah was
juvenile at the time of the alleged occurrence and accordingly,
he has been declared juvenile. In such view of the matter, the
Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025
3/52
said co-ordinate Bench of this Court, by the aforementioned
order dated 09.02.2018 has been pleased to set aside the
sentence awarded to the said Devendra Sah vide judgment dated
16.5.2016in Sessions trial no. 348/1998, has granted bail to him and the Office of this court has been directed to separate the case of the said Devendra Sah from this record as well as from lower court record and send the same to Juvenile Justice Board, Vaishali at Hajipur within two weeks for passing order on the point of sentence qua the said Devendra Sah, with a direction to the said Devendra Sah to appear before the Juvenile Justice Board, Vaishali at Hajipur within a fortnight from today.
3. The short facts of the case are that the fardbeyan of the informant Surendra Singh was recorded by the Assistant Sub- Inspector of Police, Pirbahore Police Station, District-Patna, namely, Sri R.P. Singh on 05.05.1996 at 09:45 a.m. at the PMCH, Emergency Ward, Patna. In the fardbeyan, Surendra Singh (who later on died in the month of August, 2008), has stated that his nephew, namely Ajay Kumar Singh (deceased) aged about 20 years used to study in R.N. College, Hajipur in the final year of B.A. course. He has further stated that his niece Pratima Kumari (PW-7) used to study at Vaishali Vidyalaya, Mahua in class-10 and used to go to village Mahua Singrai for Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 4/52 taking tuition from Jha Ji sir. The informant has next stated that on the previous day at about 05:30 in the evening the Chaukihdar of the police station informed that the nephew of the informant, namely Ajay Kumar Singh is admitted in Mahua Government Hospital where he is lying unconscious and has received injuries on his forehead and body. Immediately, the niece of the informant Pratima Kumari informed the informant that when she was returning from Mahua Singrai after having taken tuition and had reached at the tea shop of Yogendra Das, there in front of the shop, Binod Das and Yogendra Das had engaged in eve teasing with her, whereafter she had returned home and disclosed about the same to Ajay Kumar Singh, whereupon Ajay Kumar Singh, for making enquiry from Binod Das and Yogendra Das, had gone to the shop of Yogendra Das, where Mahendra Das, Yogendra Das, Ram Briksh Das and Binod Das had assaulted Ajay Kumar Singh on his forehead by a sharp weapon as also by rod and lathi. Upon receiving information police had arrived there and taken Ajay Kr. Singh to the hospital. He has stated that the occurrence was witnessed by the local people. The informant has next stated that thereafter, he along with other related persons had gone to Mahua Hospital where they found Ajay Singh to have been grievously injured Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 5/52 and was lying in an unconscious condition. The doctor had then referred the said Ajay Kumar Singh on 04.05.1996 itself and at about 7:00 in the evening they had taken him for treatment to PMCH where he was admitted, however he died during the course of treatment in an unconscious state on 4.5.1996 itself at about 10:45 p.m. The informant has also stated that it is his claim that Mahendra Das, Yogendra Das, Ram Briksh Das and Binod Das have assaulted Ajay Kr. Singh by sharp cutting weapon, lathi and rod with an intention to kill him, resulting in him being injured grievously and he died while he was unconscious and was being treated at PMCH.
4. On the basis of the said fardbeyan of the informant, a formal FIR bearing Mahua P.S. Case No. 86 of 1996 was drawn on 05.05.1996 at 10:45 a.m. against Mahendra Das, Yogendra Das, Ram Briksh Das and Binod Das under Sections 302/34 of the IPC. The police had then conducted investigation and upon finding the case to be true, had filed chargesheet against Mahendra Das, Yogendra Das, Ram Briksh Das, Binod Das, Dinesh Das, Devendra Sah and Nathuni Das. The learned Trial Court upon considering the chargesheet and the materials on record had taken cognizance of the offence under Section 302/34 of the IPC vide order dated 24.07.1997 against all the Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 6/52 aforesaid seven accused persons, whereafter the case was committed to the Court of Sessions vide order dated 03.12.1998 and was numbered as Sessions Trial No. 348 of 1998. The learned Trial Court had then framed charges against the aforesaid accused persons including the appellants vide order dated 21.09.2002 under Section 302/149 of the IPC.
5. During the course of trial, the prosecution has examined 11 witnesses. While PW-2 Shila Nath Sahni, PW-9 Akhilesh Kumar, PW-10 Awadhesh Kumar and PW-11 Amarnath Das are formal witnesses, PW-3 Mukesh Kumar Singh, PW-5 Hare Ram Singh and PW-6 Fudeni Rai claim to be eye witnesses to the alleged occurrence. The prosecution has also examined PW-1 Upendra Singh and PW-7 Pratima Kumari, who are stated to be hearsay witnesses. PW-4 Dev Narayan Jha has been declared hostile while PW-8 Dr. Arvind Kumar Singh has conducted the postmortem examination of the dead body of the deceased Ajay Kumar Singh.
6. The learned counsel for the appellant of the second case namely, Binod Das has submitted that though the date of occurrence is 04.05.1996 at around 05:00 p.m. in the evening, however, there is no evidence on record to show as to who had informed the police and how the police had arrived at the place Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 7/52 of occurrence inasmuch as no diary entry at the police station has been brought on record. It is also submitted that how the deceased was taken to Mahua and then to PMCH has not been explained inasmuch as neither any document showing that the deceased was treated at Mahua Hospital has been produced nor any evidence showing that the police had taken the deceased to the hospital, has been produced. In fact, no evidence has been produced to prove the date and time of taking the deceased from Mahua Hospital to PMCH. The prosecution has failed to bring on record any document to show that the doctor at Mahua Hospital had referred the deceased for further treatment to PMCH nor any document has been brought on record to show that the deceased was treated at PMCH. The learned counsel for the appellant of the second case has next submitted that though the deceased had succumbed to his injuries at 10:45 p.m. in the night of 04.05.1996, however the fardbeyan was recorded only on 05.05.1996 at about 09:45 a.m., hence in between the said period the prosecution had hatched a conspiracy to falsely implicate the accused persons including the appellants. It is also submitted that there is in fact no eye witness to the alleged occurrence and as far as PW-3, PW-5 and PW-6 are concerned, who claim to be eye-witnesses, they can at best said to be Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 8/52 chance witnesses. It is also submitted that neither the author/ scribe of the fardbeyan nor that of the FIR has been examined which has caused grave prejudice to the prosecution. It is contended that all the witnesses have suppressed the factum of Yogendra Das having been injured and in fact the injury sustained by the accused Yogendra Das has also stood unexplained by the prosecution.
7. The learned counsel for the appellant of the second case has referred to paragraph no. 11 of a judgment rendered by the Hon'ble Apex Court in the case of Lakshmi Singh vs. State of Bihar, reported in AIR 1976 SC 2263 to submit that non- explanation of the injuries sustained by the accused at the time of the occurrence or during the course of altercation is a very important circumstance & where the prosecution fails to explain the injuries sustained by the accused, two results follow:-
(1) The evidence of the prosecution witnesses is untrue;
(2) The injuries probabilise the plea taken by the appellants.
8. Thus, it is submitted that in the present case reference has though been made to the injuries sustained by Yogendra Das by PW-6 (Fudeni Rai), however the prosecution has failed to prove the cause of such injury. Therefore, the said witness is obviously Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 9/52 not speaking the truth. In fact paragraph no. 13 of the said judgment rendered in the case of Lakshmi Singh (supra) has also been referred and it has been submitted that though it is not necessary for the defence to prove its case with the same rigor as the prosecution is required to prove its case, however it is sufficient if the defence succeeds in showing a reasonable doubt with regard to the case of the prosecution and the same would be sufficient to enable the Court to reject the prosecution version. It is thus submitted that in the present case neither the Investigating Officer has been examined nor any blood-stained mud/clothes have been seized much less have been marked as material exhibits, hence in absence of any seizure list, the prosecution has failed to prove the guilt of the appellants beyond all reasonable doubt.
9. The learned counsel for the appellant of the second case has next relied on a judgment rendered in the case of Jugal Yadav vs. The State of Bihar, reported in 2023 (3) PLJR 692, paragraph no. 13 whereof is reproduced herein below:-
"13. Turning to issue No. IV at hand, upon a thorough review of the case records, it becomes evident that the Investigating Officer has not been examined in this case. It is crucial to underscore the pivotal role of the Investigating Officer in establishing the place of occurrence and circumstances surrounding the incident Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 10/52 through the presentation of evidence, including search and seizures, and statements of the key witnesses. It is pertinent to note that examination of the investigating officer enables to recognize the significant right of the accused to highlight contradictions in the statements made by witnesses during the investigation, as recorded by the Investigating Officer. This right holds considerable weight, as it allows the defense to effectively demonstrate that the witness has provided inconsistent testimony compared to their earlier statements before the Investigating Officer. In the present case, the circumstances indicate that the prosecution has attempted to suppress certain material witnesses, including the Investigating Officer, without providing any reasonable justification. In the case of State of Karnataka vs. Bhaskar Kushali Kotharkar and Ors., (Cr. Appeal No. 498 of 1998) the Hon'ble Supreme Court while highlighting the importance of examination of Investigating Officer, observed:
"It is true that as a part of fair trial the investigating officer should be examined in the trial cases especially when a serious sessions trial was being held against the accused. If any of the prosecution witnesses give any evidence contrary to their previous statement recorded under Section 161 Cr.P.C. or if mere is any omission of certain material particulars, the previous statement of these witnesses could be proved only by examining the investigating officer who must have recorded the statement of these witnesses under Section 161 Cr.P.C."
Hence, in the present case, the non-examination of the Investigating Officer has undeniably prejudiced the accused, as the actual place of occurrence remains unverified, and the accused have been deprived of the opportunity to challenge the credibility of the prosecution witnesses through questioning of the Investigating Officer. Therefore, in our considered opinion, the failure to examine the Investigating Officer in this case constitutes Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 11/52 a significant flaw that has resulted in prejudice to the case.
Accordingly, the issue no. IV is decided in affirmative." Thus, it is the submission of the learned counsel for the appellant of the second case that in the present case also since the Investigating Officer has not been examined, grave prejudice has been caused to the appellants and the prosecution has deliberately withheld the evidence of the Investigating Officer so that the actual truth may not come to the fore.
10. The Ld. counsel for the appellant of the second case has next relied upon a judgment dated 10.04.2014 rendered by the Ld. Division Bench of this Court in the case of Sarvalal Rai vs. The State of Bihar (Criminal Appeal {DB} No. 397 of 1993), paragraphs no. 16 and 17 whereof are reproduced herein below:-
"16. What is, now, of great significance to note is that though in his evidence, the informant (PW 3) has claimed that despite the fact that he had informed the police about the occurrence, the police did not record the information, which the informant (PW 3) had so given, the Investigating Officer has not been examined in the present case. Neither any explanation has been offered by the prosecution, in this regard, nor is any explanation discernible, in this regard, from the materials on record. What was the oral information given to the police, as regards the occurrence, by the informant (PW 3), remains, thus, a mystery.
17. The inference, therefore, which is irresistible to draw is that the Investigating Officer has been withheld by the prosecution inasmuch as his evidence would not have Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 12/52 supported the evidence of the informant that though he had reported the occurrence at the place of occurrence, the police officer, instead of recording his statement, came to the place of occurrence and it was at the place of occurrence that the informant's statement was recorded; otherwise also, it is not at all reasonable to believe that a police officer, on duty, at a Police Station, would leave the Police Station without making, in the general diary, any entry as regards his departure from his police station. The initial information, therefore, given to the police, with regard to the occurrence, has been clearly suppressed."
11. Lastly, the learned counsel for the appellant of the second case has relied on a judgment rendered by the learned Division Bench of this Court in the case of Ranjit Kumar & Anr. vs. State of Bihar, reported in 2025(3) BLJ 631 to submit that non- recovery of blood from the spot as also failure on the part of the prosecution to prove the place of occurrence is deemed to be fatal to the case of the prosecution. In the present case also neither any seizure list pertaining to seizure of blood-soaked mud or blood-stained clothes have been prepared nor the place of occurrence has been proved nor the time of occurrence has stood proved, hence the learned Trial Court has committed grave error in convicting the appellants, thus the same is required to be set aside.
12. The learned counsel for the appellant of the first case Sri Ram Shankar Das has submitted that the so-called eye-witnesses Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 13/52 lack credibility, the motive has not been proved and neither the place of occurrence has been identified nor established. He has next referred to the evidence of PW-1 Upendra Singh, especially paragraph no. 4 thereof to submit that he has stated in his evidence that no occurrence has taken place in his presence. He has also referred to paragraph no. 4 of the evidence of PW-3 Mukesh Kumar Singh to submit that he has stated in his evidence that his village is at a distance of 2-2 and ½ kilometers from the place of occurrence, the informant is his villager and deceased happens to be his village brother. It has also been stated that PW-5 is a hearsay witness and he has stated in paragraph no. 12 of his evidence that the occurrence had taken place towards the northern-eastern side of Fudeni Chowk and when he had seen Ajay, there was no injury on his body, meaning thereby that even PW-5 is not an eye-witness and had not seen any injury on the person of the deceased. Reference has next been made to paragraph no. 9 of the evidence of PW-6 to submit that it has been stated by the said witness that he had seen injury on the body of Yogendra Das (accused) and some injury was also on his stomach. This injury remains to be explained by the prosecution. As far as PW-7 is concerned, reference has been made to paragraph no. 4 of her deposition to Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 14/52 submit that she is a hearsay witness. It has been next argued that the Investigating Officer has not been examined which has gravely prejudiced the case of the defence, apart from the fact that independent witnesses, who were present at the place of occurrence, have also not been examined and instead only close relatives and interested witnesses have been examined from whose evidence it is apparent that they are neither reliable nor trustworthy. Lastly, it is submitted by the learned counsel appearing for the appellant of the first case that initially the appellant of the first case, namely Dinesh Das was not named in the FIR, hence the same also creates a doubt about the veracity of the version of the prosecution.
13. The learned APP for the State Mr. Ajay Mishra has submitted that the best proof of the place of occurrence, time of occurrence and the presence of the deceased at the place of occurrence is Exhibit-A and B brought on record by the defence i.e. the FIR filed by Yogendra Das bearing Mahua P.S. Case No. 89 of 1996 and the judgment of acquittal passed in the said case dated 28.06.2003 by the learned Sub Divisional Judicial Magistrate, Hajipur, (Vaishali) in Sessions Trial No. C1- 798 of 1997. Mr. Mishra has next submitted that the occurrence had taken place in front of the shop of the accused Yogendra Das at Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 15/52 Fudeni Chowk and the best independent witness examined in this case is PW-6 (Fudeni Rai), who has fully supported the case of the prosecution. It is submitted that the genesis of the case is eve teasing of the sister of the deceased, namely Pratima Kumari (PW-7) by the accused persons. It is also submitted that the defence has failed to impeach the credibility of the prosecution witnesses and they have deposed consistently, hence the same is sufficient to prove the guilt of the accused persons including the appellants beyond all reasonable doubt. It is submitted that non-examination of the Investigating Officer is not fatal to the present case inasmuch as not only the place of occurrence has been proved by the eye-witnesses but the depiction of the occurrence, as deposed by the eye-witnesses is consistent, hence in face of the ocular evidence being credible in the present case, non-examination of the Investigating Officer would not prejudice the case of the prosecution. Lastly, it is submitted that the medical evidence fully stands corroborated by the ocular evidence and vice versa.
14. Besides hearing the learned counsel for the parties, we have minutely perused both the evidence, i.e. oral and documentary. Before proceeding further, it is necessary to cursorily discuss the evidence.
Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 16/52
15. PW-1 Upendra Singh has stated in his deposition that the occurrence dates back to the year 1996 at about 04:00 in the evening when he was at the door of the house of Surendra Singh (informant) where information was received that some people have surrounded Ajay Kumar Singh and were beating him at Fudeni Chowk resulting in him having become unconscious. Thereafter, they had gone to Mahua Hospital via Fudeni Chowk, where the doctor told them to take the deceased to PMCH, Patna, whereafter they had immediately taken the deceased to PMCH, Patna where during the course of treatment he died. PW-1 has also stated that the inquest report was prepared in his presence upon which he had put his signature, which he has identified and the same has been marked as Exhibit-1. PW-1 has next stated that the reason for the occurrence is that some boys used to misbehave with the sister of the deceased, namely Pratima Kumari at Fudeni Chowk, while returning from the school, which used to be protested by her leading to quarrel having taken place in between Ajay Kumar Singh and Yogendra Das as also one betel shop owner, resulting in the said incident. PW-1 has also stated that he heard that the deceased was injured by Yogendra Das, Mahendra Das, Ram Briksh Das, Binod Das and others. PW-1 has stated that at the hospital he had seen that Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 17/52 the forehead and face of the deceased had been badly injured. He had recognized accused Yogendra Das standing in the dock. In cross-examination, PW-1 has stated that the distance between his house situated at Garhuar Road from Fudeni Chowk is 2.5 km and he has to go to Mahua Bazaar via Fudeni Chowk. PW-1 has stated that the occurrence had not taken place in his presence and he along with Surendra Singh had gone from Mahua Hospital to PMCH, Patna. He has also stated that the inquest report was prepared by the police at PMCH, Patna. In paragraph no. 9 of his cross-examination, PW-1 has stated that prior to the incident there was no quarrel in between the parties. In para no. 10 of his cross-examination, PW-1 has stated that the deceased is his cousin brother and Surendra Singh is his uncle.
16. PW-2 Shila Nath Sahni has stated in his deposition that he has seen Sri P.N. Tiwary, Officer-in-Charge, reading and writing in the police station and he has identified the formal FIR dated 05.05.1996 to have been written in his hand writing, which has been marked as Exhibit-2. In his cross-examination, PW-2 has stated that the aforesaid FIR was not written in his presence and he has got no personal knowledge about the same.
17. PW-3 Mukesh Kumar Singh has stated in his deposition that the occurrence dates back to 04.05.1996 in the evening in Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 18/52 between 04:00 to 04:30 on which day he was going from Mahua Bazaar to his house and when he reached near Fudeni Chowk, he saw that in front of the shop of Yogendra Das on the road quarrel was taking place in between Ajay Kumar Singh and Yogendra Das, Dinesh Das, Nathuni Das and Devendra Sah. In the meantime, Yogendra Das brought an iron rod from his shop and inflicted a blow on Ajay, whereupon Ajay tried to flee away, upon which Yogendra Das had raised hulla, whereupon Ram Briksh Das, Mahendra Das and Binod Das armed with axe, lathi and danda had arrived there and had started assaulting Ajay, leading to Ajay becoming injured and falling down on the ground. PW-3 and others had tried to save Ajay but the accused persons started abusing and threatening to assault them, whereupon they had fled away. In paragraph no. 2 of his examination-in-chief, PW-3 has stated that after sometime he came to know that Ajay Kumar Singh was hospitalized at Mahua Hospital and he was unconscious as also his family members were present there, whereafter the doctor had referred him to PMCH, where in the night during the course of treatment he had died. PW-3 has further stated that occurrence had taken place on account of eve teasing inasmuch as sister of Ajay used to be misbehaved with by Binod Das and on account of the Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 19/52 same Ajay had gone to make enquiry, leading to the said incident and his consequent death. He has recognized the accused persons standing in the dock. In paragraph no. 4 of his cross-examination, PW-3 has stated that deceased Ajay is brother in relation and on the day of incident he had not met Surendra Singh, however at the place of occurrence, Hare Ram Singh (PW-5) was with him. In paragraph no. 5 of his cross- examination, PW-3 has stated that at Fudeni Chowk, there are many shops and on that day he had not seen any injury on the body of Yogendra Das. In paragraph no. 6 of his cross- examination, PW-3 has stated that there was no quarrel in between Ajay and the accused persons since before. He has also stated that the forehead of Ajay was injured and he had also seen injuries on the chest and eyes of Ajay, who had fallen towards the eastern side of the road and had become unconscious. In paragraph no. 7 of his cross-examination, PW-3 has stated that after Ajay had fallen, police had arrived and had lifted him and taken him to the hospital. He has also stated that when the police had taken away Ajay, he was not present there and none from the family of deceased had arrived there. In paragraph no. 9 of his cross-examination, PW-3 has stated that he had also gone to the hospital but he had not seen Yogendra Das at Mahua Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 20/52 Hospital in an injured condition and on the same day Ajay was referred by the doctor to PMCH, Patna. In paragraph no. 10 of his cross-examination, PW-3 has stated that Yogendra Das has also filed a case against Surendra Singh and others with regard to the occurrence which had taken place on the same day.
18. PW-4 Dev Narayan Jha has stated in his deposition that he does not know anything about the occurrence, hence he has been declared hostile. In cross-examination, PW-4 has stated that the Officer-in-Charge had not recorded his statement and he had not told the Officer-in-Charge that he was present at Fudeni Chowk at the time of occurrence. In cross-examination, PW-4 has stated that his school is situated at a distance of 18-20 kilometers from Fudeni Chowk and at the time of occurrence, he was not imparting tuition to any girl of Dayalpur village.
19. PW-5 Hare Ram Singh has stated in his evidence that the occurrence dates back to about nine years and three months at about 04:00-05:00 in the evening. The occurrence had taken place on 04.05.1996 at about 04:30 p.m. PW-5 has further stated that in the morning when he was going from his house to Mahua, Pratima Kumari had met him at Fudeni Chowk and had told him that sons of Yogendra Das had engaged in eve teasing, whereafter he had calmed her and sent her back to her home. Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 21/52 Thereafter, he had gone to teacher Dev Narayan Jha (PW-4) and had told him about the entire incident, whereafter he had gone to Mahua and then he had returned back to his home at 11:00 hours. PW-5 has next stated that after having reached home he had again left his house for Mahua at 03:00 p.m. along with Mukesh Kumar Singh (PW-3) and after finishing their work at Mahua when they were returning back at around 04:30 p.m. in the evening and had reached at Fudeni Chowk, they saw that quarrel was taking place in between Ajay and Yogendra Das and during the course of altercation, Yogendra Das had assaulted Ajay by rod, whereafter Ajay had tried to flee away and then Yogendra Das had raised hulla, whereupon Mahendra Das, Ram Briksh Das, Nathuni Das, Binod Das, Dinesh Das and Devendra Sah had arrived there armed with rod, axe and baat and then they had surrounded Ajay and had started assaulting him. Thereafter, PW-5 and Mukesh Kumar Singh (PW-3) had tried to save him, however they threatened to assault them leading to them fleeing away. Afterwards, this witness came to know that Ajay has been taken to Mahua Hospital where he was lying in an unconscious condition. In paragraph no. 3 of his examination-in-chief, PW-5 has stated that afterwards the family members of Ajay had taken him to PMCH, Patna and in the Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 22/52 night during the course of treatment Ajay had died. He has also stated that the occurrence had taken place on account of eve teasing of Pratima Kumari leading to Ajay having gone to make an enquiry, whereupon the accused persons had assaulted him. He has recognized the accused standing in the dock. In cross- examination, PW-5 has stated that Fudeni Chowk is situated at Mahua and his house is situated at a distance of 2-2½ kilometers from the place of occurrence i.e. Fudeni Chowk, Surendra Singh is his co-villager and Pratima happens to be her sister on account of she belonging to the same village. In paragraph no. 6 of his cross-examination, PW-5 has stated that he knows Yogendra Das since 10 years. In paragraph no. 7 of his cross- examination, PW-5 has stated that Yogendra used to come to his house and Yogendra and his sons used to run a shop as also used to drive vehicle. In paragraph no. 8 of his cross-examination, PW-5 has stated that on the date of occurrence he had gone to Mahua twice, which is situated at a distance of three kilometers from his house. He has also stated that when Pratima had made a complaint to him, she was alone and he had not taken her to his teacher. He has next stated that Pratima had said that sons of Yogendra Das used to engage in eve teasing. In paragraph no. 9 of his cross-examination, PW-5 has stated that he had informed Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 23/52 the family members of Pratima about the incident of eve teasing, however at that time no male members were present and only female members of the family were present. In paragraph no. 10 of his cross-examination, PW-5 has stated that there was no conversation between him and Ajay regarding the incident of eve teasing. In paragraph no. 11 of his cross- examination, PW-5 has stated that he had gone to Mahua for bringing medicine for sprinkling in the field and while he was returning from Mahua, he saw that Ajay was being assaulted by the accused persons and at that time Mukesh Kumar Singh (PW-
3) was also returning with him. In paragraph no. 12 of his cross- examination, PW-5 has stated that the occurrence had taken place with Ajay towards northern-eastern side of Fudeni Chowk and when he saw Ajay, he had not found any injury on his body. In paragraph no. 13 of his cross-examination, PW-5 has stated that injuries were all over the body of Ajay and there were innumerable injuries on his body, however he cannot say as to how many injuries of lathi or baat or rod respectively, were present on the body of Ajay. He has also stated that lot of blood was oozing out from the head of Ajay and rod had been inflicted at 10 places on the head. PW-5 has further stated in his cross- examination that at 2-4 places on the head, rod blow had been Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 24/52 inflicted resulting in Ajay falling on the ground and he was also assaulted by axe on his hands and legs. He has next stated that when Ajay had fallen down on the ground, the accused persons had tried to assault them but he along with Mukesh Kumar Singh (PW-3) had fled away. In paragraph no. 14 of his cross- examination, PW-5 has stated that they had fled away to Mahua and the Officer-in-Charge had made enquiries from him after 4- 5 days of the occurrence at the police station. In paragraph no. 15 of his cross-examination, PW-5 has stated that he had disclosed the name of Dinesh, Devendra and Binod before the police. He has also stated that he had not seen any sign of injury on the body of Yogendra.
20. PW-6 Fudeni Rai has stated in his deposition that the occurrence dates back to 04.05.1996 at about 04:30 in the evening when he was at his house. The place of occurrence is at Fudeni Chowk. After he heard sound of quarrel and assault taking place, he had immediately reached at the place of occurrence and then he saw that Yogendra Das, Dinesh Das, Binod Das and Devendra Sah armed with lathi, danda and iron rod were assaulting one boy who had fallen on the ground and the said accused persons were assaulting all over his body. The sister of the said boy Ajay used to be misbehaved with by the Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 25/52 accused persons, which he had opposed and the same had resulted in the accused persons giving effect to the said occurrence. PW-6 has next stated that Ajay Kumar Singh had died during the course of treatment at PMCH, Patna on account of the injuries sustained by him due to the aforesaid assault. He has recognized the accused persons standing in the dock. In paragraph no. 4 of his cross-examination, PW-6 has stated that in the said occurrence Ram Briksh Das and Nathuni Das were not present. In paragraph no. 5 of his cross-examination, PW-6 has stated that Fudeni Chowk has been named on his name and his house is situated towards the east of Fudeni Chowk. There are 10-20 houses and the house of the accused persons is situated towards the northern-western side at a distance of 5-10 laggi. He has also stated that Dayalpur village is situated at a distance of 1½ kilometer from Fudeni Chowk. He has next stated that he recognizes some persons from Dayalpur village. In paragraph no. 7 of his cross-examination, PW-6 has stated that since past he knows the family members of Surendra Singh, Rajendra Singh and Chhabila Singh and on the date of occurrence he had not seen Rajendra Singh and Chhabila Singh at Fudeni Chowk. In paragraph no. 8 of his cross-examination, PW-6 has stated that on the southern side of Chowk, house of Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 26/52 Dev Narayan Jha is situated, however he had not talked with him regarding the occurrence in question and had also not met him on the day of occurrence. In paragraph no. 9 of his cross- examination, PW-6 has stated that shop of Yogendra Das is situated at Chowk and he has also got a shop at the said place and at the time of occurrence the same was open, however no customer was present but he cannot say as to whether any customer was present or not at the shop of Yogendra. He has stated that there was injury on the person of Yogendra Das i.e. a small injury on his stomach, however he was not unconscious at that time. In paragraph no.10 of his cross-examination, PW-6 has stated that on the said day he had not seen injuries on the person of any other person, however on that day one boy was lying on the ground at a distance of 5-7 laggi towards the southern-western side of the Chowk and after 10-15 minutes of him lying on the ground, 100-150 persons had arrived there and amongst them the accused persons were also present. In paragraph no. 12 of his cross-examination, PW-6 has stated that he has not taken the land of Yogendra Das on rent.
21. PW-7 Pratima Kumari has stated in her evidence that the occurrence dates back to about 13 years when she used to study in High School at Mahua and used to go to Bajrangi Sir for Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 27/52 tuition purposes, where she used to go via Fudeni Chowk and there two boys, namely Binod Das and Devendra Das used to engage in eve teasing with her which she had tolerated for 2-3 days but thereafter, she had disclosed about the same to his brother Ajay Kumar Singh and when he had gone to enquire about the same from the said two boys, the said two boys, namely Binod Das and Devendra Das as also Yogendra Das, Mahendra Das, Ram Briksh Das and others had assaulted her brother leading to him being injured, whereafter he was taken to Mahua Hospital and from there he was sent to PMCH, Patna where he died. PW-7 has also stated that she had disclosed about the incident to her neighborhood brother Hare Ram Singh. In paragraph no. 3 of her examination-in-chief, PW-7 has stated that the aforesaid facts were also disclosed before the Investigating Officer in her statement made before him. She has stated that the informant of the present case, namely Surendra Singh who is her uncle, died in the month of August, 2008. In cross-examination, PW-7 has stated that she had not seen the incident of assault which had taken place with his brother, however she has heard about the same and on the said basis she is making her statement. In paragraph no. 5 of her cross- examination, PW-7 has stated that she used to study at High Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 28/52 School at Mahua at the time of occurrence which is at a distance of 3-4 kilometers from her house and near the said High School, the house of Bajrangi Master is situated who is still alive but she cannot say as to whether he has retired or not. In paragraph no. 6 of her cross-examination, PW-7 has stated that Fudeni Chowk is at a distance of 2-2½ kilometers from her house (father's house) and while going and coming from the school, the same is situated in the middle as also while going to tuition, Fudeni Chowk is situated in the middle and she used to travel on foot. She used to go to the Master Saheb' place in the evening for taking tuition, after the school was over. In paragraph no. 7 of her cross-examination, PW-7 has stated that the Investigating Officer had come to the door of her house and made enquiries about the incident, whereupon she had given her statement and at that time co-villagers, namely, Mukesh Kumar Singh (PW-3), Hare Ram Singh (PW-5), Upendra Singh (PW-1) and others were present. In paragraph no. 8 of her cross-examination, PW-7 has stated that her marriage was solemnized in the year 1999 and she has got two children. In paragraph no. 9, PW-7 has stated that she had disclosed before the Investigating Officer regarding the accused persons engaging in eve teasing with her. She has stated that the said incident was also narrated to her co- Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 29/52 villager Hare Ram Singh and to her brother.
22. PW-8 Dr. Arvind Kumar Singh has stated in his deposition that on 05.05.1996 he was posted as Tutor in the Forensic Medicine Department, PMCH, Patna and on the same day at about 11:30 a.m., he had conducted postmortem examination of the dead body of Ajay Kumar Singh and on examination he had found the following injuries: -
"A. Rigor mortis all over the body. No decomposition B. Antemortem injuries-
I. Incised wound 1 ½" x ½" bone deep, over the
right frontal and mid portion of the head.
II. Incised wound 1 ½" x ½" x bone deep, over right
middle portion of frontal bone.
III Incised wound ½" x ½ x bone deep over right
parietal region.
IV. Incised wound 1½" x ½ " into bone deep over left
parietal region.
V. Incised wound transversely placed 2 ½ x ½ x
bone deep, over left parietal region.
VI. Incised wound 2"x ½" x bone deep over right occipital region.
VII. Incised wound 1" x ½" x skin deep over mid line above the nose.
VIII. Abrasion 2" x ½ " over right neck.
IX. Contusion 2" x 1" over left neck.
X. Contusion 2" x 2" over left medial size of Arm. XI. Four parallel bruises 3" x ½ " over the back of chest right to left.
Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 30/52 XII. Contusion 1" x 1" over right fore arm. XIII. Abrasion 2" x 1" over right thigh medially. XIV. Nail-like scratches found on both side of the neck. On dissection: -
Scalp hematoma found all over. There was a linear fracture 1½" long over occipital area. Bone depression over it 1½" x ½ " found. Another linear/fracture 7" long over left to right parietal bone. There was a depressed fracture over left parietal region 1½" x ½" are. On opening of scalp massive extra dural hemorrhage was found on left side and sub-dural hematoma on right parietal region with brain laceration. All the viscera in general were moderately conjected. Stomach contained black colour fluid/fuel. Mucosa normal.
D. In my opinion: -
(i) Time elapsed in death- 6 to 12 hours approx.
(ii) Cause of death- Intracranial hemorrhage due to multiple injuries over the head.
(iii) Nature of weapon- Injury No. I to VII by sharp cutting and VIII to XIV by hard and blunt substance.
These injuries may be caused by sharp edged weapon, iron rod and lathi.
PW-8 has stated in his examination-in-chief that he had prepared the aforesaid postmortem report in his writing which bears his signature and the same has been marked as Exhibit-3. In paragraph no. 3 of his cross-examination, PW-8 has stated that there was no decomposition, hence the time elapsed from death has been opined as 6-12 hours, although there are other essential elements like rigor mortis for opining the same. In Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 31/52 paragraph no. 4 of his cross-examination, PW-8 has stated that after three hours of death, rigor mortis begins on dead body and appears all over the body within 12 hours and it starts disappearing after 24 hours and till 36 hours it completely disappears from all over the body. In summer the decomposition starts after 12 hours. In paragraph no. 5 of his cross- examination, PW-8 has stated that he had conducted the aforesaid postmortem examination in the month of May i.e. summer season. In paragraph no. 6 of his cross-examination, PW-8 has stated that the aforesaid injuries are not possible at all by accident or accident by vehicle, as far as the present case is concerned. In paragraph no. 7, PW-8 has stated that the aforesaid injuries are not possible by fall, in the present case. In paragraph no. 8 of his cross-examination, PW-8 has stated that no food was present in the stomach or any part of the body of the aforesaid dead body.
23. PW-9 Akhilesh Kumar, PW-10 Awadhesh Kumar and PW-11 Amarnath Das are Advocate Clerks and formal witnesses who have proved various documents. While PW-9 Akhilesh Kumar has identified the writing and signature of Assistant Sub- Inspector of Police, R.P. Singh, Pirbahore Police Station, Patna on the fardbeyan, which has been marked as Exhibit-3, PW-10 Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 32/52 Awadhesh Kumar has identified the writing and signature of Sri P.N. Tiwary, the then Officer-in-Charge, Mahua Police Station on the fardbeyan and FIR, which has been marked as Exhibit-4. PW-11 Amarnath Das has identified the writing and signature of A.S.I. Sri R.K. Singh, Pirbahore Police Station who had scribed the fardbeyan, which has been marked as Exhibit-3/1.
24. After closing the prosecution evidence, the Ld. Trial Court recorded the statement of the aforesaid appellants on 13.05.2011 under Section 313 of the Cr.P.C. for enabling them to personally explain the circumstances appearing in the evidence against them, however them claimed to be innocent.
25. The learned Trial Court, upon appreciation, analyzing and scrutiny of the evidence adduced at the trial has found the aforesaid appellants guilty of the offence and has sentenced them to imprisonment and fine as stated above, by the impugned judgment and order.
26. We have perused the impugned judgment of the Ld. Trial Court, the entire materials on record and have given thoughtful consideration to the rival submissions made by the Ld. Counsels for the appellants and the Ld. APP for the State. The first and foremost aspect, which is required to be adjudged is as to whether any ocular evidence is available on record to prove the Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 33/52 guilt of the aforesaid appellants for the offences with which they have been charged. The prosecution has led the evidence of PW- 1 Upendra Singh, PW-3 Mukesh Kumar Singh, PW-5 Hare Ram Singh, PW-6 Fudeni Rai and PW-7 Pratima Kumari to prove the guilt of the accused persons apart from having led the evidence of PW-8 Dr. Arvind Kumar Singh, who has conducted the postmortem examination of the dead body of the deceased and based upon the same the learned Trial Judge has convicted the appellants and others whereas on the contrary the appellants have primarily taken the defence that there is no eye witness to the alleged occurrence, the Investigating Officer of this case has not been examined which has caused grave prejudice to the defence, place of occurrence and motive behind the occurrence has not stood established, blood has not been recovered from the spot and eye witnesses, if any, lack credibility.
27. Having examined the evidence led by the prosecution, we find that the place of occurrence as well as the date and time of occurrence has stood proved, as is apparent from the deposition of the eye witnesses, i.e. PW-3 Mukesh Kumar Singh, PW-5 Hare Ram Singh and PW-6 Fudeni Rai. As regards the mode and manner of occurrence is concerned, we would deal with the evidence of the eye-witnesses, herein after. PW-3 Mukesh Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 34/52 Kumar Singh has stated in his evidence that the occurrence dates back to 04.05.1996 in the evening in between 4:00-4:30 p.m. while he was going from Mahua Bazar to his house and when he had reached Fudeni Chowk, he saw that in front of the shop of Yogendra Das, on the road quarrel was taking place in between Ajay Kumar Singh (deceased) and Yogendra Das, Dinesh Das (Appellant of the 1st case), Nathuni Das and Devendra Sah. In the meantime, Yogendra Das brought an iron rod from his shop and inflicted a blow on Ajay (deceased), whereupon he tried to flee away, upon which Yogendra Das had raised hulla (alarm), leading to Ram Briksh Das, Mahendra Das and Binod Das (Appellant of the 2 nd case), armed with axe, lathi and danda having arrived there and then they had also assaulted Ajay (deceased) leading to him becoming injured and falling down on the ground. PW-3 Mukesh Kumar Singh and others had tried to save Ajay (deceased) but the accused persons started abusing and threatening to assault them, whereupon they had fled away. He has also stated that the said Ajay Kumar Singh (deceased) was hospitalized at Mahua Hospital from where he was taken to PMCH, Patna and there he died in the night during the course of treatment.
28. As far as PW-5 Hare Ram Singh is concerned, he has Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 35/52 stated in his evidence that the occurrence had taken place at about 04:45 p.m. in the evening of 04.05.1996 and while he was going from his house to Mahua in the morning, Pratima Kumari (PW-7) had met him at Fudeni Chowk and had told him that son of Yogendra Das has engaged in eve teasing, whereafter he had calmed her and sent her back to her home and then he had gone to Mahua, from where he had returned back to his home at 11:00 a.m. PW-5 has further stated that he had again left his house for going to Mahua at 03:00 p.m. along with Mukesh Kumar Singh (PW-3) and after finishing their work at Mahua when they were returning back at around 04:30 p.m. in the evening and had reached at Fudeni Chowk, they saw that quarrel was taking place in between Ajay (deceased) and Yogendra Das and during the course of altercation, Yogendra Das had assaulted Ajay by rod, whereafter Ajay had tried to flee away & then Yogendra Das had raised hulla (alarm), whereupon Mahendra Das, Ram Briksh Das, Nathuni Das, Binod Das (Appellant of the 2nd case), Dinesh Das (Appellant of the 1st case) and Devendra Sah had arrived there, armed with iron rod, axe and baat, after which they had surrounded Ajay (deceased) and then they started assaulting him, leading to PW-5 Hare Ram Singh and Mukesh Kumar Singh (PW-3) having tried to save Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 36/52 him, however the accused threatened to assault them leading to them fleeing away. PW-3 has also stated that Ajay (deceased) was then taken to Mahua Hospital in an unconscious condition from where he was referred to PMCH, Patna and there he died in the night during the course of treatment.
29. Now coming to PW-6 Fudeni Rai, he has stated in his deposition that the occurrence dates back to 04.05.1996 at about 04:30 p.m. in the evening when he was at his house and after he heard some sound of quarrel and assault taking place at Fudeni Chowk, he immediately reached at the place of occurrence, where he saw that Yogendra Das, Dinesh Das (Appellant of the 1st case), Binod Das (Appellant of the 2nd case) and Devendra Sah, armed with lathi, danda and iron rod were assaulting one boy all over his body who had fallen on the ground. He has also stated that the accused persons used to misbehave with the sister of the said boy Ajay (deceased), which he had opposed and the same had led to the accused persons giving effect to the said occurrence. He has next stated that the said boy namely Ajay Kumar Singh had died during the course of treatment at PMCH, Patna.
30. We find from the evidence of PW-5 Hare Ram Singh and PW-6 Fudeni Rai, who are independent eye-witnesses to the said occurrence as also from the evidence of PW-3 Mukesh Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 37/52 Kumar Singh, who is also an eye-witnesses and stated to be brother in relation qua the deceased that all of them have deposed consistently, however the defence has not been able to elicit any contradiction during the course of cross-examining them. In fact, apart from the evidence of the aforesaid three eye- witnesses, the best proof of the place of occurrence, time of occurrence, mode and manner of occurrence and the presence of the deceased as also the accused persons including the appellants at the place of occurrence is Exhibit-A and B, brought on record by the defence i.e. the FIR lodged by Yogendra Das bearing Mahua P.S. Case No. 89 of 1996 and the judgment of acquittal passed in the said case dated 28.06.2003 by the Ld. Court of Sub-Divisional Judicial Magistrate, Hajipur (Vaishali) in Sessions Trial No. C1-798 of 1997. Thus, we find from the evidence of PW-3 Mukesh Kr. Singh, PW-5 Hare Ram Singh and PW-6 Fudeni Rai, who are eye witnesses to the alleged occurrence that the mode, manner, date, time and place of occurrence have stood proved, thus the guilt of the accused persons including the appellants also stands proved beyond all reasonable doubt.
31. As far as the motive of the accused persons for giving effect to the alleged occurrence is concerned, the same has also Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 38/52 stood established by the prosecution's evidence inasmuch as all the three eye witnesses i.e. PW-3 Mukesh Kumar Singh, PW-5 Hare Ram Singh and PW-6 Fudeni Rai have stated in their respective testimony that the occurrence had taken place on account of eve-teasing of the sister of the deceased by the accused persons. In this regard, it would be relevant to point out that PW-3 Mukesh Kumar Singh has stated in his evidence that occurrence had taken place on account of eve-teasing inasmuch as Binod Das (Appellant of the 2nd case) i.e. son of Yogendra Das used to misbehave with the sister of the deceased Ajay, while PW-5 Hare Ram Singh has stated in his evidence that the occurrence had taken place since the sons of Yogendra Das, namely Binod Das and Dinesh Das, i.e. the appellants of the aforesaid two appeals, used to engage in eve-teasing with the sister of the deceased Ajay whereas PW-6 Fudeni Rai has stated that the sister of the deceased Ajay used to be misbehaved with by the accused persons. Thus, there is no iota of doubt that the motive for the said occurrence has stood established beyond all reasonable doubts.
32. At this juncture, it would be relevant to refer to the evidence of the doctor i.e. PW-8 Dr. Arvind Kumar Singh who has conducted the postmortem of the dead body of the deceased, Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 39/52 who on examination of the dead body has found about 14 serious antemortem injuries over - head, frontal bone, parietal region, occipital region, above the nose, over the right and left neck, arm, back of chest, fore-arm and thighs of the deceased as also, upon dissection has found fractures at occipital area, parietal bone etc. apart from having found sub-dural hematoma and brain laceration. The doctor (PW-8) has opined that the cause of death is Intracranial hemorrhage due to multiple injuries over the head and the nature of weapon used has been stated as follows:-
"Injury No. I to VII by sharp cutting and VIII to XIV by hard and blunt substance. These injuries may be caused by sharp edged weapon, iron rod and lathi."
Thus, we are of the view that the medical evidence not only fully corroborates the ocular testimony of the eye witnesses but also completely substantiates the injuries which have been caused in the manner alleged and moreover, there is no irreconcilable conflict between the oral and the medical evidence which would warrant discarding the prosecution case, hence in no case the ocular evidence can be thrown out. In this regard, reference be had to a judgment rendered by the Hon'ble Apex Court in the case of Solanki Chimanbhai Ukabhai vs. State of Gujarat, reported in (1983) 2 SCC 174.
Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 40/52
33. Thus, upon consideration of the entire prosecution evidence and its careful analysis, we can safely conclude that the evidence of the prosecution witnesses, especially PW-3, PW- 5, PW-6 and PW-8, apart from that of PW-1 and PW-7 are cogent, convincing, creditworthy and reliable, hence there is no reason to doubt the genuineness of their testimony, on the basis of which the learned Trial Court has convicted the appellants. We also find that no contradiction has been drawn by the defence while cross-examining the said witnesses and there is no material contradiction in their evidence. In fact, all the prosecution witnesses have deposed consistently, apart from the fact that PW-3, PW-5 and PW-6 are eye-witness to the alleged occurrence, hence we find that the evidence of prosecution witnesses is credible and trustworthy, being consistent and cogent, thus is fit to be relied upon to establish the guilt of the appellants.
34. Yet another aspect of the matter is that the prosecution's evidence would show that the accused persons including the appellants herein were seen assaulting the deceased, together with lathi, danda, iron rod, axe and baat. We may point out that it is a well settled law that in cases where large number of accused persons constituting an unlawful assembly are alleged Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 41/52 to have attacked and killed one or more persons, it is not necessary that each of the accused should inflict fatal injuries or any injury at all and by invoking Section 149, the members of an unlawful assembly can be punished on the ground of vicarious liability even though they are not accused of having inflicted fatal injuries. Reference, in this connection, be had to a judgment, rendered by the Hon'ble Apex Court in the case of Nitya Nand vs. State of Uttar Pradesh & Anr., reported in (2024) 9 SCC 314, paragraphs no. 41 to 48 are reproduced herein below:
"41. Section 141IPC defines "unlawful assembly". It says an assembly of five or more persons is designated as unlawful assembly if the common object of the persons composing that assembly is to commit an illegal act by means of criminal force.
42. As per Section 148IPC which deals with rioting armed with deadly weapon, whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. "Rioting" is defined in Section 146IPC. As per the said definition, whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.
43. This brings us to the pivotal section which is Section 149IPC. Section 149IPC says that every member of an unlawful assembly shall be guilty of the offence Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 42/52 committed in prosecution of the common object. Section 149IPC is quite categorical. It says that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of committing of that offence, is a member of the said assembly; is guilty of that offence. Thus, if it is a case of murder under Section 302IPC, each member of the unlawful assembly would be guilty of committing the offence under Section 302IPC.
44. In Krishnappa vs. State of Karnataka [(2012) 11 SCC 237], this Court while examining Section 149 IPC held as follows :
"20. It is now well-settled law that the provisions of Section 149IPC will be attracted whenever any offence committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or when the members of that assembly knew that offence is likely to be committed in prosecution of that object, so that every person, who, at the time of committing of that offence is a member, will be also vicariously held liable and guilty of that offence. Section 149IPC creates a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. This principle ropes in every member of the assembly to be guilty of an offence where that offence is committed by any member of that assembly in prosecution of common object of that assembly, or such members or assembly knew that offence is likely to be committed in prosecution of that object.
21. The factum of causing injury or not causing injury would not be relevant, where the accused is sought to be roped in with the aid of Section 149IPC. The relevant question to be examined by the court is Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 43/52 whether the accused was a member of an unlawful assembly and not whether he actually took active part in the crime or not."
45. Thus, this Court in Krishnappa case [(2012) 11 SCC 237] held that Section 149 IPC creates a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. By application of this principle, every member of an unlawful assembly is roped in to be held guilty of the offence committed by any member of that assembly in prosecution of the common object of that assembly. The factum of causing injury or not causing injury would not be relevant when an accused is roped in with the aid of Section 149IPC. The question which is relevant and which is required to be answered by the court is whether the accused was a member of an unlawful assembly and not whether he actually took part in the crime or not.
46. As a matter of fact, this Court in Vinubhai Ranchhodbhai Patel vs. Rajivbhai Dudabhai Patel [(2018) 7 SCC 743] has reiterated the position that Section 149IPC does not create a separate offence but only declares vicarious liability of all members of the unlawful assembly for acts done in common object. This Court has held :
"20. In cases where a large number of accused constituting an "unlawful assembly" are alleged to have attacked and killed one or more persons, it is not necessary that each of the accused should inflict fatal injuries or any injury at all. Invocation of Section 149 is essential in such cases for punishing the members of such unlawful assemblies on the ground of vicarious liability even though they are not accused of having inflicted fatal injuries in appropriate cases if the evidence on record justifies. The mere presence of an accused in such an "unlawful assembly" is sufficient to render him vicariously liable under Section 149 IPC Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 44/52 for causing the death of the victim of the attack provided that the accused are told that they have to face a charge rendering them vicariously liable under Section 149IPC for the offence punishable under Section 302IPC. Failure to appropriately invoke and apply Section 149 enables large number of offenders to get away with the crime.
***
22. When a large number of people gather together (assemble) and commit an offence, it is possible that only some of the members of the assembly commit the crucial act which renders the transaction an offence and the remaining members do not take part in that "crucial act" -- for example in a case of murder, the infliction of the fatal injury. It is in those situations, the legislature thought it fit as a matter of legislative policy to press into service the concept of vicarious liability for the crime. [Ramu Gope v. State of Bihar, 1968 SCC OnLine SC 74, para 5 : AIR 1969 SC 689, p. 692, para 5: "5. ... When a concerted attack is made on the victim by a large number of persons it is often difficult to determine the actual part played by each offender. But on that account for an offence committed by a member of the unlawful assembly in the prosecution of the common object or for an offence which was known to be likely to be committed in prosecution of the common object, persons proved to be members cannot escape the consequences arising from the doing of that act which amounts to an offence."] Section 149IPC is one such provision. It is a provision conceived in the larger public interest to maintain the tranquillity of the society and prevent wrongdoers (who actively collaborate or assist the commission of offences) claiming impunity on the ground that their activity as members of the unlawful assembly is limited.
*** Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 45/52
34. For mulcting liability on the members of an unlawful assembly under Section 149, it is not necessary that every member of the unlawful assembly should commit the offence in prosecution of the common object of the assembly. Mere knowledge of the likelihood of commission of such an offence by the members of the assembly is sufficient. For example, if five or more members carrying AK 47 rifles collectively attack a victim and cause his death by gunshot injuries, the fact that one or two of the members of the assembly did not in fact fire their weapons does not mean that they did not have the knowledge of the fact that the offence of murder is likely to be committed."
47. It is true that there are certain lacunae in the prosecution. The scribe Kuldeep was not examined. Similarly, the younger brother Laxmi Narain was not examined though it has come on record that Laxmi Narain was killed in the year 1993 and in that case one of the accused is the appellant himself. It is also true that neither any country-made pistol was recovered nor any cartridge, empty or otherwise, recovered. However, the appellant has been roped in with the aid of Section 149IPC. Therefore, as held by this Court in Yunis v. State of M.P. [(2003) 1 SCC 425], no overt act is required to be imputed to a particular person when the charge is under Section 149IPC; the presence of the accused as part of the unlawful assembly is sufficient for conviction. It is clear from the evidence of PW 1 and PW 2 that the appellant was part of the unlawful assembly which committed the murder. Though they were extensively cross-examined, their testimony in this regard could not be shaken.
48. In view of what we have discussed above, we have no doubt in our mind that the trial court had rightly convicted the appellant under Section 148IPC read with Sections 302/149 IPC and that the High Court was justified in confirming the same. The question framed in Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 46/52 para 16 above is therefore answered in the affirmative."
35. Nonetheless, a bare perusal of the evidence on record would show that the prime complicity in the alleged occurrence is definitely that of Yogendra Das and his two sons i.e. the appellants of the aforesaid two appeals, apart from other accused persons. The evidence of the prosecution witnesses would show that all the accused persons including the aforesaid appellants were members of unlawful assembly and had given effect to the occurrence in question in prosecution of the assembly's common object as also committed the offence with a shared illegal purpose. We thus find from the evidence of the prosecution witnesses that all the accused persons, including the appellants of the aforesaid two appeals were not only members of unlawful assembly but had also participated in the incident in prosecution of the common object of that assembly and as a result of commission of the offence in question, Ajay Kr. Singh has died, hence the aforesaid appellants/accused persons, who were members of the said unlawful assembly at the time of commission of the offence in question are definitely guilty of that offence, i.e. the one under Section 302 of the IPC by invocation of Section 149 of the IPC, hence they are liable to be convicted under Section 302 of the IPC with the aid of Section 149 of the IPC, keeping in view the law laid down by the Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 47/52 Hon'ble Apex Court in the case of Nitya Nand (supra).
36. Now coming to the arguments raised by the learned counsels for the appellants of the aforesaid two appellants to the effect that neither Investigating Officer has been examined nor blood stained mud/clothes have been seized, thus the same is fatal to the case of the prosecution and consequently the guilt of the appellants has not stood proved beyond all reasonable doubt, we find that the law in this regard is well settled and on the issue of non-examination of the Investigating Officer, we would like to refer to a Judgment rendered by the Hon'ble Apex Court in the case of Behari Prasad Vs. State of Bihar, reported in (1996) 2 SCC 317, wherein it has been held that non- examination of the Investigating Officer is not fatal to the prosecution case, especially when no prejudice is likely to be suffered by the accused and that prosecution case need not fail solely due to non-examination of investigating officer as long as eye-witnesses stay intact. The Hon'ble Supreme Court, in yet another judgment rendered in the case of Bahadur Naik vs. State of Bihar, reported in (2000) 9 SCC 153, has held that non- examination of the Investigating Officer as a witness for prosecution is of no consequence when no material contradictions have been brought out and it has also not been Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 48/52 shown as to what prejudice has been caused to the appellant due to such non-examination, especially in a situation when the accused has not been able to otherwise shake the credibility of the prosecution witnesses. It is equally a well settled law that in case overwhelming evidence of eye-witnesses are present, non- seizure of blood-stained mud/clothes would neither be of any importance nor of any consequence. As far as the present case is concerned, PW-3 Mukesh Kumar Singh, PW-5 Hare Ram Singh and PW-6 Fudeni Rai, being the eye witnesses, have in their evidence fully supported the occurrence in question and the said ocular testimony of eye-witnesses have also stood corroborated by the medical evidence led in the present case, hence non- seizure of blood stained mud/clothes would be of no relevance.
37. The other issue raised by the learned counsels for the appellants is that there are no eye witnesses to the alleged occurrence and even if PW-3 Mukesh Kumar Singh, PW-5 Hare Ram Singh and PW-6 Fudeni Rai are considered to be of some worth, they are merely chance witnesses and as far as PW-3 Mukesh Kumar Singh is concerned, he is interested/related witness. In this regard, it would suffice to state that first of all PW-5 Hare Ram Singh and PW-6 Fudeni Rai, being eye witnesses are not only un-related to the prosecution but also Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 49/52 independent witnesses and moreover, even if they are considered to be chance witnesses, it is a well settled law that their testimony is not required to be viewed with suspicion, can be relied upon and their evidence has to be treated with importance although such witnesses may be required to provide a convincing explanation for their presence at the scene of occurrence. As far as PW-3 Mukesh Kumar Singh, PW-5 Hare Ram Singh and PW-6 Fudeni Rai are concerned, they have suitably provided convincing explanation for their presence at the scene of the occurrence and in fact PW-6 Fudeni Rai is not only a resident of the area where the occurrence had taken place but has also got a shop at Fudeni Chowk and the entire area is named after his name. At this juncture, we may like to reiterate the well settled law to the effect that it is not the number or quantity but the quality that is material while considering the testimony of an eye witness though he may be the sole/single witness, which is the mandate and logic of Section 134 of the Indian Evidence Act, 1872.
38. As regards the argument raised by the learned counsel appearing for the appellant of the first case i.e. Dinesh Das to the effect that initially he was not named in the FIR and his name has been introduced subsequently, we find that the same Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 50/52 would have no bearing inasmuch firstly the informant is not an eye witness to the alleged occurrence, nonetheless he had narrated the incident in his fardbeyan as was told to him by others, however the fact remains that PW-3 Mukesh Kumar Singh, PW-5 Hare Ram Singh and PW-6 Fudeni Rai, who are eye witnesses to the alleged occurrence have named not only the appellant of the first case but also the appellant of the second case to be having complicity in the alleged occurrence wherein the accused persons, including the aforesaid two appellants had assaulted the deceased badly resulting in his death and we have already found the ocular testimony of the eye witnesses to be cogent, convincing, creditworthy and reliable, thus the said argument does not merit any consideration. In fact, the eye witnesses have also stated that the sons of Yogendra Das i.e. the appellants herein used to engage in eve teasing qua PW-7 Pratima Kumari, which was opposed to by the deceased and the same had led to the accused persons giving effect to the occurrence in question wherein the said two appellants of the aforesaid two appeals had also participated along with others in assaulting the deceased leading to him being injured badly and his consequent death. In any view of the matter we may refer to the well settled law to the effect that an FIR is not an Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 51/52 Encyclopedia of the prosecution case and is not a substantive evidence which can only be used to corroborate or contradict its maker in court.
39. Thus, taking into account an overall perspective of the entire case, emerging out of the totality of the facts and circumstances, as indicated hereinabove and considering the evidence, which has been brought on record to prove the allegations levelled against the appellants beyond pale of any reasonable doubt as well as considering the credibility and trustworthiness of the evidence of the prosecution, which has not been discredited during the course of cross-examination coupled with the postmortem report and for the foregoing reasons, we find that there is no reason to create any doubt in our minds. Therefore, there is no reason to create any doubt about the guilt of the appellants of the aforesaid two appeals in the alleged occurrence which stands proved beyond all reasonable doubts. Hence, having examined the materials available on record, we do not find any apparent error in the impugned judgment of conviction and order of sentence, thus the aforesaid two appeals bearing Criminal Appeal (DB) No. 555 of 2016 and Criminal Appeal (DB) No. 693 of 2016 stand dismissed.
Patna High Court CR. APP (DB) No.555 of 2016 dt.12-11-2025 52/52
40. The Appellants, namely Dinesh Das and Binod Das are already in custody, hence they are directed to serve the remaining sentence.
(Mohit Kumar Shah, J)
I agree. (Shailendra Singh, J)
S.Sb/-
AFR/NAFR AFR
CAV DATE 19.06.2025
Uploading Date 12.11.2025
Transmission Date 12.11.2025