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