Yamuna Singh And Ors vs The State Of Bihar on 8 July, 2026

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    Patna High Court

    Yamuna Singh And Ors vs The State Of Bihar on 8 July, 2026

             IN THE HIGH COURT OF JUDICATURE AT PATNA
                          CRIMINAL APPEAL (DB) No.78 of 2019
              Arising Out of PS. Case No.-113 Year-2015 Thana- DHANSOI District- Buxar
         ======================================================
    1.    SANTOSH SINGH, son of Yamuna Singh Resident of Village- Jeevpur,
          P.S.- Dhansoi, District- Buxar.
    2.   Budhdev Singh, son of Yamuna Singh Resident of Village- Jeevpur, P.S.-
         Dhansoi, District- Buxar.
    
                                                                         ... ... Appellant/s
                                              Versus
         THE STATE OF BIHAR
    
                                                      ... ... Respondent/s
         ======================================================
                                   with
                     CRIMINAL APPEAL (DB) No. 58 of 2019
              Arising Out of PS. Case No.-113 Year-2015 Thana- DHANSOI District- Buxar
         ======================================================
    1.    Yamuna Singh, son of Kawalpati Singh Resident of village-Jeevpur, P.S-
          Dhansoi, District-Buxar
    2.   Rampravesh Singh, son of Kawalpati Singh Resident of village-Jeevpur, P.S-
         Dhansoi, District-Buxar
    3.   Kawalpati Singh, son of Late Ramdhari Singh Resident of village-Jeevpur,
         P.S-Dhansoi, District-Buxar
    4.   Harimuni Singh @ Tiwari Singh, son of Kawalpati Singh Resident of
         village-Jeevpur, P.S-Dhansoi, District-Buxar
    5.   Anil Singh, son of Kawalpati Singh Resident of village-Jeevpur, P.S-
         Dhansoi, District-Buxar
    
                                                                         ... ... Appellant/s
                                              Versus
    1.   The State Of Bihar Bihar
    
    
    
                                                      ... ... Respondent/s
         ======================================================
                                   with
                     CRIMINAL APPEAL (DB) No. 83 of 2019
              Arising Out of PS. Case No.-113 Year-2015 Thana- DHANSOI District- Buxar
         ======================================================
         GAUTAM SINGH @ MANTU SINGH, Son of Yamuna Singh Resident of
         Village-Jeevpur, P.S.-Dhansoi
    
                                                                         ... ... Appellant/s
                                              Versus
     Patna High Court CR. APP (DB) No.78 of 2019 dt.08-07-2026
                                               2/39
    
    
    
    
           The State of Bihar
    
                                                        ... ... Respondent/s
           ======================================================
                                     with
                       CRIMINAL APPEAL (DB) No. 111 of 2019
                  Arising Out of PS. Case No.-113 Year-2015 Thana- DHANSOI District- Buxar
           ======================================================
      1.    BHARAT SINGH, son of Wakil Singh Resident of Village - Jiwpur, P.S. -
            Dhansoi , Distt.- Buxar
      2.    Laxaman Singh, son of Wakil Singh Resident of Village - Jiwpur, P.S. -
            Dhansoi , Distt.- Buxar
      3.    Wakil Singh, son of Ambika Singh Resident of Village - Jiwpur, P.S. -
            Dhansoi , Distt.- Buxar
      4.    Ramji Singh, son of Wakil Singh Resident of Village - Jiwpur, P.S. - Dhansoi
            , Distt.- Buxar
      5.    Ambika Singh, son ofLate Ramdhari Singh Resident of Village - Jiwpur, P.S.
            - Dhansoi, Distt.- Buxar
      6.    Ramashankar Singh, son of Ambika Singh Resident of Village - Jiwpur, P.S.
            - Dhansoi , Distt.- Buxar
    
                                                                             ... ... Appellant/s
                                                  Versus
           THE STATE OF BIHAR
    
                                                     ... ... Respondent/s
           ======================================================
           Appearance :
           (In CRIMINAL APPEAL (DB) No. 78 of 2019)
           For the Appellant/s  :    Mr. Ajay Kumar Thakur, Advocate
                                     Mr. Pawan Kumar Singh, Advocate
                                     Mr. Pranshu Singh, Advocate
           For the Respondent/s :    Mr. Abhimanyu Sharma, APP
           (In CRIMINAL APPEAL (DB) No. 58 of 2019)
           For the Appellant/s  :    Mr. Ajay Kumar Thakur, Advocate
                                     Mr. Pawan Kumar Singh, Advocate
                                     Mr. Pranshu Singh, Advocate
           For the Respondent/s :    Mr. Abhimanyu Sharma, APP
           (In CRIMINAL APPEAL (DB) No. 83 of 2019)
           For the Appellant/s  :    Mr. Ajay Kumar Thakur, Advocate
                                     Mr. Pawan Kumar Singh, Advocate
                                     Mr. Pranshu Singh, Advocate
           For the Respondent/s :    Mr. Abhimanyu Sharma, APP
           (In CRIMINAL APPEAL (DB) No. 111 of 2019)
           For the Appellant/s  :    Mr. Ajay Kumar Thakur, Advocate
                                     Mr. Pawan Kumar Singh, Advocate
                                     Mr. Pranshu Singh, Advocate
           For the Respondent/s :    Mr. Abhimanyu Sharma, APP
           ======================================================
     Patna High Court CR. APP (DB) No.78 of 2019 dt.08-07-2026
                                               3/39
    
    
    
    
           CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
                   and
                   HONOURABLE MR. JUSTICE RANA VIKRAM SINGH
           CAV JUDGMENT
           (Per: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI)
    
             Date : 08-07-2026
    
                           1. These batch of criminal appeals arise out of the
    
              common judgment of conviction dated 29.11.2018 and order
    
              of sentence dated 30.11.2018 passed by the learned Presiding
    
              Officer, Fast Track Court-II, Buxar in Sessions Trial No. 296
    
              of 2016, arising out of Dhansoi P.S. Case No. 113 of 2015
    
              dated 21.11.2015 (G.R. No. 3158 of 2015). By the impugned
    
              judgment, the learned trial court convicted all the 14 accused
    
              persons (appellants herein) for the offences punishable under
    
              Sections 147, 148, 341 and 302 read with Section 149 of the
    
              Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and
    
              sentenced them to undergo rigorous imprisonment for life
    
              along with a fine of Rs. 1,00,000/- (Rupees One Lakh) each,
    
              with default stipulation of further five years rigorous
    
              imprisonment. They were, however, acquitted of the charge
    
              under Section 504 IPC. All sentences were directed to run
    
              concurrently.
    
                           2. During the pendency of these appeals, two
    
              appellants have died. Accordingly, Criminal Appeal (DB) No.
    
              58 of 2019 stands abated as against Appellant No. 3 therein,
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              and Criminal Appeal (DB) No. 111 of 2019 stands abated as
    
              against Appellant No. 5 therein. The appeals survive in respect
    
              of the remaining appellants.
    
                           3. The prosecution case, as unfolded during trial, is
    
              as follows:
    
                           (i) On 19.11.2015 at about 09:00 AM, the deceased
    
              Subhash Singh was returning to his village after visiting his
    
              agricultural field situated to the north of Village Jeevpur, P.S.
    
              Dhansoi, District Buxar. When he reached near the drain
    
              (Karaha Nala) adjacent to the paddy field of Vishwanath
    
              Upadhyay, he was allegedly surrounded by 21 named persons.
    
              According to the fardbeyan of the informant Dinesh Kumar
    
              Singh (PW-4), cousin of the deceased, all the accused were
    
              hiding in the paddy field. On the exhortation of accused
    
              Yamuna Singh saying "Kill this bastard (Sale ko maro)",
    
              accused Mantu Singh @ Gautam Singh assaulted the deceased
    
              on his head with an axe/farsa, causing him to fall down.
    
              Thereafter, accused Santosh Singh assaulted him on the leg
    
              with a sword, accused Budhdev Singh assaulted him with a
    
              spear, and the remaining accused assaulted him with lathis and
    
              sticks with the common object to kill him.
    
                           (ii) The informant (PW-4), who claimed to be
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              proceeding towards his own field on the southern road and
    
              was at a distance of about 50 yards from the spot, witnessed
    
              the occurrence. He raised an alarm, upon which villagers
    
              including PWs 1, 2 and 3 gathered at the spot. Seeing the
    
              villagers, the accused persons fled away. The injured Subhash
    
              Singh was immediately taken to Sadar Hospital, Buxar for
    
              treatment. After first aid, considering his serious condition, he
    
              was referred to the Trauma Centre, BHU, Varanasi, where he
    
              was admitted and treated. He remained unconscious
    
              throughout the treatment and succumbed to his injuries on
    
              05.12.2015

    (after about 16-17 days).

    4. The motive behind the occurrence, as alleged, is a

    SPONSORED

    long-standing land dispute between the two parties, who

    belong to the same extended family but are divided into

    factions. Several cases were pending between them prior to

    the incident.

    5. On the basis of the fardbeyan of PW-4 (Ext.4),

    recorded by Sub-Inspector, Islam Ahmed on 20.11.2015 at

    about 04:20 PM at the Trauma Centre, BHU, Varanasi in

    presence of witnesses Santosh Singh (PW-1) and Vijay Singh

    (PW-3), Dhansoi P.S. Case No. 113 of 2015 was registered on

    21.11.2015 under Sections 147, 148, 149, 341, 323, 307 and
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    504 IPC. Section 302 IPC was added after the death of the

    deceased vide order dated 07.12.2015.

    6. Investigation was initially conducted by SI

    Mungalal Singh (first Investigating Officer), who submitted

    charge sheet No. 22/2016 dated 29.02.2016 against eight

    accused persons. Thereafter, the second Investigating Officer,

    Narendra Kumar Sinha (PW-6), then SHO of Dhansoi P.S.,

    took over the investigation and submitted supplementary

    charge sheet No. 107/2016 dated 31.08.2016 against seven

    more accused persons. Cognizance was taken and the case

    was committed to the Court of Sessions. Charges were framed

    against the 14 accused persons on 25.08.2017, to which they

    pleaded not guilty and claimed trial.

    7. In support of its case, the prosecution examined

    seven witnesses:

    a. PW-1 (Santosh Singh): Son of the deceased. He

    claimed to have witnessed the occurrence while returning

    from his field.

    b. PW-2 (Ramanuj Singh): Relative of the deceased.

    He also claimed to be an eye-witness.

    c. PW-3 (Vijay Singh): Real brother of the deceased

    and an eye-witness.

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    d. PW-4 (Dinesh Kumar Singh): Informant and

    cousin of the deceased. He is the star witness who lodged the

    fardbeyan.

    e. PW-5 (Dr. Robin Kumar Dubey): Conducted the

    post-mortem examination on 06.12.2015 at Lal Bahadur

    Shastri Hospital, Ramnagar, Varanasi.

    f. PW-6 (Narendra Kumar Sinha): Second

    Investigating Officer.

    g. PW-7: Formal witness.

    8. Several documents were exhibited including the

    fardbeyan (Ext.4), post-mortem report (Ext.2), inquest report

    and other hospital papers (Ext.3 series), formal FIR (Ext.6),

    etc.

    9. The defence neither examined any witness nor

    produced any documentary evidence. The statements of the

    accused persons under Section 313 Cr.P.C. were recorded

    wherein they denied the allegations and claimed to have been

    falsely implicated due to previous land dispute and enmity.

    10. The defence, as emerges from the trend of cross-

    examination, statements under Section 313 Cr.P.C., and

    arguments advanced by learned counsel for the appellants, is

    one of total denial and false implication. The appellants have
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    contended that no such occurrence took place in the manner

    alleged by the prosecution. They claim to have been falsely

    implicated due to pre-existing land dispute and deep-rooted

    enmity between the two factions of the same extended family.

    11. It is the specific case of the defence that several

    cases were pending between the parties even prior to the

    incident. The accused side had also filed cases against the

    informant party, including Dhansoi P.S. Case No. 67/2015

    (STR No. 100/2016) and a Miscellaneous Case in the High

    Court. The defence has highlighted that the prosecution has

    suppressed these counter-cases and the admitted enmity. It is

    further submitted that the entire prosecution case is based on

    interested and related witnesses belonging to one side of the

    family dispute, and no independent witness from the village

    has been examined despite the allegation that several villagers

    had gathered at the spot on hearing the alarm.

    12. The defence has also raised serious doubts

    regarding the manner of occurrence, pointing out that the

    paddy field was allegedly waist-high, the distance of the

    witnesses was around 50 yards, and visibility of specific overt

    acts (including exact weapons used and parts of body

    targeted) under such circumstances is highly improbable. It is
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    contended that the first information was not promptly given to

    the local police station despite the alleged gathering of

    villagers, and the fardbeyan was recorded belatedly at a

    distant hospital in Varanasi, giving sufficient time for

    consultation and concoction.

    13. The defence has further argued that the

    investigation was defective. The first Investigating Officer,

    who conducted the major part of the investigation including

    spot inspection and recording of statements of most witnesses,

    was not examined. This has caused serious prejudice to the

    appellants as they could not effectively bring out

    contradictions between the previous statements and the

    evidence in Court. The second Investigating Officer (PW-6)

    admitted that he had done almost nothing except recording

    statements of two formal witnesses and submitting the

    supplementary charge sheet.

    14. With respect to the medical evidence, the

    defence has submitted that the post-mortem report does not

    conclusively support the use of sharp cutting weapons as

    alleged, especially since the wounds were stitched and their

    margins could not be opined upon by the doctor. The death

    having occurred after a long gap of 16-17 days, during which
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    the deceased remained unconscious, it is argued that the

    intention to cause death or the knowledge that the injuries

    were likely to cause death has not been established against all

    the appellants, particularly those against whom only general

    allegations of assault with lathis have been made.

    15. The appellants have also highlighted the

    defective examination under Section 313 Cr.P.C., wherein

    omnibus and generic questions were put to all the accused

    persons without distinguishing their individual roles, thereby

    denying them a fair and proper opportunity to explain the

    circumstances appearing against them in the evidence.

    16. In short, the defence has prayed for acquittal of

    all the appellants on the ground that the prosecution has

    miserably failed to prove its case beyond reasonable doubt.

    17. In view of the rival contentions raised by the

    parties and the materials available on record, the following

    points fall for determination in these appeals:

    (i) Whether the prosecution has been able to prove

    beyond reasonable doubt the occurrence of the alleged assault

    on the deceased Subhash Singh on 19.11.2015 near Karaha

    Nala adjacent to the field of Vishwanath Upadhyay in Village

    Jeevpur, P.S. Dhansoi, District Buxar, in the manner as
    Patna High Court CR. APP (DB) No.78 of 2019 dt.08-07-2026
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    described in the fardbeyan and evidence of the prosecution

    witnesses?

    (ii) Whether the appellants (or any of them) were

    present at the place of occurrence and participated in the

    assault on the deceased, and if so, to what extent and with

    what role?

    (iii) Whether the injuries caused to the deceased

    Subhash Singh were sufficient in the ordinary course of nature

    to cause death or were likely to cause death, and whether the

    act of the appellants amounts to murder punishable under

    Section 302 IPC or culpable homicide not amounting to

    murder punishable under Section 304 IPC?

    (iv) Whether the prosecution has proved the

    existence of a common object among the appellants to cause

    the death of the deceased so as to attract the provisions of

    Section 149 IPC against all of them?

    (v) Whether the trial is vitiated due to delayed

    lodging and recording of the fardbeyan/FIR, non-examination

    of the first Investigating Officer, defective investigation, or

    defective examination of the accused under Section 313

    Cr.P.C., and if so, whether such lapses have caused prejudice

    to the appellants?

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    (vi) Whether the conviction and sentence recorded

    by the learned trial court against the appellants calls for any

    interference by this Court, and if so, to what extent?

    18. We have meticulously examined the lower court

    records, the impugned judgment dated 29.11.2018, the

    evidence of all prosecution witnesses, the exhibited

    documents including the fardbeyan (Ext.4), post-mortem

    report (Ext.2), and the submissions advanced by learned

    counsel for the appellants and the State. The appeals involve

    serious questions relating to appreciation of interested ocular

    evidence, delayed FIR, medical corroboration, common object

    under Section 149 IPC, and several procedural lapses. We

    proceed to deal with each issue in detail.

    19. Point No. (i): Whether the prosecution has

    proved the occurrence as alleged?

    (i) The foundation of the prosecution case is the

    fardbeyan of PW-4 (Dinesh Kumar Singh), recorded on

    20.11.2015 at about 04:20 PM at the Trauma Centre, BHU,

    Varanasi. According to PW-4, on 19.11.2015 at around 9:00

    AM, while he was proceeding north from the village towards

    his field on the southern road, he saw the deceased Subhash

    Singh coming from the north. When the deceased reached
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    near Karaha Nala adjacent to Vishwanath Upadhyay’s paddy

    field, all 21 accused, who were hiding in the field, surrounded

    him. On the exhortation of Yamuna Singh (“Kill this

    bastard”), Mantu @ Gautam Singh assaulted the deceased on

    the head with an axe, causing him to fall. Santosh Singh then

    assaulted on the leg with a sword, Budhdev Singh with a

    spear, and the remaining persons with lathis and sticks. PW-4

    raised an alarm. Villagers gathered and the accused fled. The

    injured was taken first to Buxar Sadar Hospital and then to

    BHU Varanasi, where he died on 05.12.2015.

    (ii) This version has been supported by PW-1 (son

    of the deceased), PW-2 (relative), and PW-3 (brother of the

    deceased). All four eye-witnesses have broadly corroborated

    the assembly of the accused, the exhortation, the specific overt

    acts by three main assailants, general beating by others, and

    the subsequent events.

    (iii) However, all the four eye-witnesses are closely

    related to the deceased and belong to one faction of the

    extended family which is locked in a long-standing land

    dispute with the appellants’ side. PW-1 is the son, PW-3 is the

    real brother, PW-4 is the cousin and informant, and PW-2 has

    been described as an uncle/relative. It is an admitted position
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    that several cases were pending between the two sides even

    prior to the incident, and counter-cases had been filed by the

    appellants’ side as well.

    (iv) It is a settled principle of law that evidence of

    related or interested witnesses cannot be discarded on the

    ground of relationship alone, but when the prosecution case

    rests entirely on such witnesses, the Court is required to

    scrutinise their evidence with greater care and caution to rule

    out the possibility of false implication or exaggeration due to

    enmity. On the significance of interested witnesses in criminal

    cases, the Hon’ble Supreme Court in Hukam Singh v. State

    of Rajasthan, reported in (2000) 7 SCC 490, noted that if

    interested witnesses had seen the occurrence they would

    certainly have the interest to bring the offenders of the murder

    of their breadwinner to book. Normally the kith and kin of the

    deceased, if they had seen the occurrence would not absolve

    the real offenders and involve innocent persons in that murder.

    Paragraph no. 7 of the said judgment is reproduced

    hereinbelow:

    “7. Bhupender Pal (PW 4) and Ram
    Pyari (PW 5) were the two eyewitnesses
    examined by the prosecution. The fact
    that they were present at the scene of
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    occurrence could not be disputed nor has
    the same been disputed by the accused.
    They sustained injuries at the hands of
    the assailants and the doctor who noted
    such injuries had testified about them in
    the Court as PW 9. The version spoken of
    by PW 4 in court is substantially a
    reiteration of the version which he
    supplied to the police as early as 8.40
    p.m. on the same night. That became the
    basis for the FIR. The Sessions Court
    refused to believe the testimony of those
    witnesses on the erroneous perception
    that they are “interested witnesses”. The
    only premise for dubbing them as
    “interested witnesses” is that they were
    the kith and kin of the deceased. Why
    should such witnesses be termed as
    interested witnesses? If they had seen the
    occurrence they would certainly have the
    interest to bring the offenders of the
    murder of their breadwinner to book.
    Normally the kith and kin of the deceased,
    if they had seen the occurrence would not
    absolve the real offenders and involve
    innocent persons in that murder. (Vide
    Dalip Singh v. State of Punjab [(1953) 2
    SCC 36 : AIR 1953 SC 364 : 1954 SCR
    145 : 1953 Cri LJ 1465] , Guli Chand v.
    State of Rajasthan [(1974) 3 SCC 698 :

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    1974 SCC (Cri) 222] and Dalbir Kaur v.
    State of Punjab [(1976) 4 SCC 158 : 1976
    SCC (Cri) 527]”

    (v) At the same time, the need for close scrutiny of

    interested witnesses are also paramount. The discussion on

    this point has been authoritatively summed up by the Hon’ble

    Supreme Court in Rai Sandeep v. State (NCT of Delhi),

    reported in (2012) 8 SCC 21. The relevant paragraph of the

    said judgment is reproduced below:

    “22 [Ed.: Para 22 corrected vide Official
    Corrigendum No. F.3/Ed.B.J./48/2012
    dated 18-8-2012.] . In our considered
    opinion, the “sterling witness” should be
    of a very high quality and calibre whose
    version should, therefore, be
    unassailable. The court considering the
    version of such witness should be in a
    position to accept it for its face value
    without any hesitation. To test the quality
    of such a witness, the status of the witness
    would be immaterial and what would be
    relevant is the truthfulness of the
    statement made by such a witness. What
    would be more relevant would be the
    consistency of the statement right from
    the starting point till the end, namely, at
    the time when the witness makes the
    initial statement and ultimately before the
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    court. It should be natural and consistent
    with the case of the prosecution qua the
    accused. There should not be any
    prevarication in the version of such a
    witness. The witness should be in a
    position to withstand the cross-
    examination of any length and howsoever
    strenuous it may be and under no
    circumstance should give room for any
    doubt as to the factum of the occurrence,
    the persons involved, as well as the
    sequence of it. Such a version should
    have co-relation with each and every one
    of other supporting material such as the
    recoveries made, the weapons used, the
    manner of offence committed, the
    scientific evidence and the expert opinion.
    The said version should consistently
    match with the version of every other
    witness. It can even be stated that it
    should be akin to the test applied in the
    case of circumstantial evidence where
    there should not be any missing link in
    the chain of circumstances to hold the
    accused guilty of the offence alleged
    against him. Only if the version of such a
    witness qualifies the above test as well as
    all other such similar tests to be applied,
    can it be held that such a witness can be
    called as a “sterling witness” whose
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    version can be accepted by the court
    without any corroboration and based on
    which the guilty can be punished. To be
    more precise, the version of the said
    witness on the core spectrum of the crime
    should remain intact while all other
    attendant materials, namely, oral,
    documentary and material objects should
    match the said version in material
    particulars in order to enable the court
    trying the offence to rely on the core
    version to sieve the other supporting
    materials for holding the offender guilty
    of the charge alleged.”

    (vi) In the present case, several circumstances create

    doubt regarding the reliability and probability of the ocular

    account:

    (a) All witnesses claim to have seen the detailed

    assault from a distance of approximately 50 yards. The

    accused were allegedly hiding in a waist-high paddy field near

    a drain/ravine. The possibility of clearly identifying all 21

    persons and observing specific weapon strikes (head with axe,

    leg with sword, spear blows) from such a distance, while the

    field had standing crop, appears to be highly improbable.

    (b) The conduct of the witnesses is somewhat

    uniform and open to question. None of them was allegedly
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    attacked despite witnessing a brutal group assault on their

    close relative. PW-4 states that after being threatened, he ran a

    short distance but remained standing and watched the entire

    incident. Similar conduct is attributed to the other witnesses.

    (c) Despite the alarm and alleged gathering of

    villagers, no independent witness has been examined. In a

    village setting where an incident of this nature is alleged to

    have taken place in an open field, the non-examination of at

    least some independent persons is a significant lacuna.

    (d) While the broad occurrence of an assault on the

    deceased cannot be completely disbelieved, the evidence of

    PWs 1 to 4, being highly interested and lacking independent

    corroboration, requires cautious appreciation. Their testimony

    can be relied upon only to the extent it is natural, consistent,

    and supported by medical evidence or other circumstances.

    20. Point No. (ii): Participation of the Appellants

    (i) Specific overt acts have been attributed only to

    four persons: Mantu @ Gautam Singh (axe on head), Santosh

    Singh (sword on leg), Budhdev Singh (spear), and Yamuna

    Singh (exhortation). Against the remaining appellants, the

    allegations are general and omnibus in nature, meaning

    thereby that they assaulted with lathis and sticks and
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    surrounded the deceased.

    (ii) In cases involving a large number of accused,

    the Court must be cautious in convicting persons on the basis

    of general allegations. Participation of each accused must be

    established by reliable evidence. The evidence on record falls

    short of conclusively proving the presence and active

    participation of every appellant with the requisite mens rea,

    particularly for those against whom only general lathi blows

    have been alleged.

    21. Point No. (iii): Medical Evidence, Cause of

    Death and Nature of Offence (Section 302 vs. Section 304

    IPC)

    (i) The medical evidence is provided by PW-5, Dr.

    Robin Kumar Dubey, who conducted the post-mortem

    examination on the dead body of Subhash Singh on

    06.12.2015 at about 3:00 PM at Lal Bahadur Shastri Hospital,

    Ramnagar, Varanasi. The external injuries noted were:

    (a) Stitched wound over right parietal region of the

    head (7 cm).

    (b) Stitched wound in front of right leg (17 cm,

    below knee) with fracture of both bones.

    (c) Multiple abraded contusions over left leg with
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    fracture of both bones.

    (d) On skull opening: Contusion on forehead and

    right parietal region with underlying fractures.

    (ii) The doctor opined the cause of death as coma

    resulting from head injuries contributed by fractures of both

    lower limb bones, leading to haemorrhage and shock. Internal

    findings included subdural haematoma in the brain. The

    deceased had been brought with plaster on both lower legs,

    which was removed during examination.

    (iii) In cross-examination, PW-5 made significant

    admissions:

    (a) Since the wounds were stitched, he could not

    describe the margins and was unable to definitively opine

    whether the injuries were caused by sharp cutting weapons or

    hard blunt objects.

    (b) He could not state whether the skull fracture was

    caused by incised/cut wound or hard blunt substance.

    (c) The death certificate from BHU Trauma Centre

    (Ext.3/E) mentioned cardio-respiratory arrest.

    (d) The deceased was admitted to the Trauma

    Centre on 01.12.2015 (as per the PM report).

    (iv) The post-mortem thus corroborates that the
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    deceased suffered head and leg injuries leading to his death.

    However, the stitching of wounds (due to surgical intervention

    at BHU) has materially affected the ability of the doctor to

    link the injuries specifically to the sharp weapons alleged by

    the prosecution (axe, sword, spear). This creates a reasonable

    doubt regarding the exact nature and force of the weapons

    used.

    (v) Additionally, the deceased survived for

    approximately 16-17 days after the incident and remained

    unconscious throughout the treatment. While the injuries were

    undoubtedly grievous and caused the death, the prolonged

    survival period and the medical opinion raise questions about

    whether every appellant (particularly those with only general

    lathi allegations) had the intention to cause death or the

    knowledge that their acts were likely to cause death in the

    ordinary course of nature, as required under Section 300 IPC

    for murder.

    (vi) In view of the above, while the act of the

    appellants caused the death of Subhash Singh, the case against

    them is more appropriately covered under Section 304 Part-I

    or Part-II IPC (culpable homicide not amounting to murder),

    depending upon their individual roles and the evidence against
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    them. Conviction under Section 302 IPC read with Section

    149 IPC, therefore, cannot be sustained against all the

    appellants.

    22. Point No. (iv): Common Object under Section

    149 IPC

    (i) Section 149 IPC provides for vicarious liability

    where an offence is committed by any member of an unlawful

    assembly in prosecution of the common object of that

    assembly. Mere presence in an unlawful assembly is not

    sufficient; the prosecution must prove that each member

    shared the common object.

    (ii) In the present case, even if the presence of a

    group and an assault is accepted, the common object to cause

    death cannot be attributed uniformly to all 14 appellants.

    Specific overt acts of using deadly weapons have been

    attributed only to a few. Against the others, the evidence is

    general and omnibus. Given the interested nature of the

    witnesses, the medical ambiguity, and the defective

    investigation, the prosecution has failed to prove beyond

    reasonable doubt that every appellant shared the common

    object of causing the death of Subhash Singh. Section 149 IPC

    cannot be pressed into service mechanically to convict all the
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    appellants for the offence of murder.

    23. Point No. (v): Procedural Lapses and

    Prejudice to the Appellants

    A. Delayed Recording of Fardbeyan/FIR

    (i) The fardbeyan of PW-4 was recorded at the

    Trauma Centre, BHU, Varanasi on 20.11.2015 at 04:20 PM,

    i.e., more than 30 hours after the alleged incident. No prompt

    information was given to the local Dhansoi Police Station

    despite the alleged gathering of villagers. The formal FIR was

    registered on 21.11.2015. Such delay in a serious case

    involving specific allegations against a large number of named

    persons gives rise to the possibility of consultation,

    deliberation, and improvement. The explanation offered

    (priority to treatment) is not entirely satisfactory when

    weighed against the requirement of prompt lodging of

    information in a cognizable offence. The Hon’ble Supreme

    Court, in Thulia Kali v. State of T.N., reported in (1972) 3

    SCC 393, explained the importance of prompt lodging of

    F.I.R. The relevant paragraph of the said judgment is

    reproduced below:

    “12. It is in the evidence of Valanjiaraju
    that the house of Muthuswami is at a
    distance of three furlongs from the village
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    of Valanjiaraju. Police Station Valavanthi
    is also at a distance of three furlongs
    from the house of Muthuswami. Assuming
    that Muthuswami PW was not found at
    his house till 10.30 p.m. on March 12,
    1970, by Valanjiaraju, it is not clear as to
    why no report was lodged by Valanjiaraju
    at the police station. It is, in our opinion,
    most difficult to believe that even though
    the accused had been seen at 2 p.m.
    committing the murder of Madhandi
    deceased and a large number of villagers
    had been told about it soon thereafter, no
    report about the occurrence could be
    lodged till the following day. The police
    station was less than two miles from the
    village of Valanjiaraju and Kopia and
    their failure to make a report to the police
    till the following day would tend to show
    that none of them had witnessed the
    occurrence. It seems likely, as has been
    stated on behalf of the accused, that the
    villagers came to know of the death of
    Madhandi deceased on the evening of
    March 12, 1970. They did not then know
    about the actual assailant of the
    deceased, and on the following day, their
    suspicion fell on the accused and
    accordingly they involved him in this
    case. First information report in a
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    criminal case is an extremely vital and
    valuable piece of evidence for the
    purpose of corroborating the oral
    evidence adduced at the trial. The
    importance of the above report can
    hardly be overestimated from the
    standpoint of the accused. The object of
    insisting upon prompt lodging of the
    report to the police in respect of
    commission of an offence is to obtain
    early information regarding the
    circumstances in which the crime was
    committed, the names of the actual
    culprits and the part played by them as
    well as the names of eyewitnesses present
    at the scene of occurrence. Delay in
    lodging the first information report quite
    often results in embellishment which is a
    creature of afterthought. On account of
    delay, the report not only gets bereft of
    the advantage of spontaneity, danger
    creeps in of the introduction of coloured
    version, exaggerated account or
    concocted story as a result of deliberation
    and consultation. It is, therefore, essential
    that the delay in the lodging of the first
    information report should be
    satisfactorily explained. In the present
    case, Kopia, daughter-in-law of
    Madhandi deceased, according to the
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    prosecution case, was present when the
    accused made murderous assault on the
    deceased. Valanjiaraju, step-son of the
    deceased, is also alleged to have arrived
    near the scene of occurrence on being
    told by Kopia. Neither of them, nor any
    other villager, who is stated to have been
    told about the occurrence by Valanjiaraju
    and Kopia, made any report at the police
    station for more than 20 hours after the
    occurrence, even though the police
    station is only two miles from the place of
    occurrence. The said circumstance, in our
    opinion, would raise considerable doubt
    regarding the veracity of the evidence of
    those two witnesses and point to an
    infirmity in that evidence as would render
    it unsafe to base the conviction of the
    accused-appellant upon it.”

    (ii) Further, the Hon’ble Supreme Court in Meharaj

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

    discussing the value and the effects in delay of lodging FIR,

    held that, delay in sending special report to the Magistrate or

    failure to send copy of the FIR to the Medical Officer along

    with the dead body for post-mortem and absence of its

    reference in inquest report can give rise to an inference that

    the FIR had been anti-timed. The relevant paragraph of the
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    said judgment is reproduced below:

    “12. FIR in a criminal case and
    particularly in a murder case is a vital
    and valuable piece of evidence for the
    purpose of appreciating the evidence led
    at the trial. The object of insisting upon
    prompt lodging of the FIR is to obtain the
    earliest information regarding the
    circumstance in which the crime was
    committed, including the names of the
    actual culprits and the parts played by
    them, the weapons, if any, used, as also
    the names of the eyewitnesses, if any.
    Delay in lodging the FIR often results in
    embellishment, which is a creature of an
    afterthought. On account of delay, the FIR
    not only gets bereft of the advantage of
    spontaneity, danger also creeps in of the
    introduction of a coloured version or
    exaggerated story. With a view to
    determine whether the FIR was lodged at
    the time it is alleged to have been
    recorded, the courts generally look for
    certain external checks. One of the checks
    is the receipt of the copy of the FIR, called
    a special report in a murder case, by the
    local Magistrate. If this report is received
    by the Magistrate late it can give rise to
    an inference that the FIR was not lodged
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    at the time it is alleged to have been
    recorded, unless, of course the
    prosecution can offer a satisfactory
    explanation for the delay in despatching
    or receipt of the copy of the FIR by the
    local Magistrate. Prosecution has led no
    evidence at all in this behalf. The second
    external check equally important is the
    sending of the copy of the FIR along with
    the dead body and its reference in the
    inquest report. Even though the inquest
    report, prepared under Section 174 CrPC,
    is aimed at serving a statutory function, to
    lend credence to the prosecution case, the
    details of the FIR and the gist of
    statements recorded during inquest
    proceedings get reflected in the report.
    The absence of those details is indicative
    of the fact that the prosecution story was
    still in an embryo state and had not been
    given any shape and that the FIR came to
    be recorded later on after due
    deliberations and consultations and was
    then ante-timed to give it the colour of a
    promptly lodged FIR. In our opinion, on
    account of the infirmities as noticed
    above, the FIR has lost its value and
    authenticity and it appears to us that the
    same has been ante-timed and had not
    been recorded till the inquest proceedings
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    were over at the spot by PW 8.”

    B. Non-examination of the First Investigating

    Officer

    (i) The first IO conducted the major part of the

    investigation including spot inspection, recording of

    statements of most witnesses, and submission of the first

    charge sheet. He was not examined on the ground that he had

    become paralysed and bedridden (supported by Exhibit-7).

    Non-examination of an IO is not per se fatal to the prosecution

    case, and depends on the facts of each case. The same was

    held by the Hon’ble Supreme Court in Behari Prasad v. State

    of Bihar, reported in (1996) 2 SCC 317. Paragraph 23 of the

    said judgement is reproduced hereinbelow:

    “23. It, however, appears to us that the
    entire case diary should not have been
    allowed to be exhibited by the learned
    Additional Sessions Judge. In the facts of
    the case, it appears to us that the
    involvement of the accused in committing
    the murder has been clearly established
    by the evidences of the eyewitnesses. Such
    evidences are in conformity with the case
    made out in FIR and also with the
    medical evidence. Hence, for non-
    examination of Investigating Officer, the
    prosecution case should not fail. We may
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    also indicate here that it will not be
    correct to contend that if an Investigating
    Officer is not examined in a case, such
    case should fail on the ground that the
    accused were deprived of the opportunity
    to effectively cross-examine the witnesses
    for the prosecution and to bring out
    contradictions in their statements before
    the police. A case of prejudice likely to be
    suffered by an accused must depend on
    the facts of the case and no universal
    strait-jacket formula should be laid down
    that non-examination of Investigating
    Officer per se vitiates a criminal trial.
    These appeals, therefore, fail and are
    dismissed. The appellants who have been
    released on bail should be taken into
    custody to serve out the sentence.”

    (ii) It is also well settled that it does not dent the

    prosecution case where no material contradictions are shown.

    In Ram Dev v. State of U.P., reported in 1995 Supp (1) SCC

    547, the Hon’ble Supreme Court stressed on the desirability of

    the prosecution to produce the IO. In paragraph 7 of the said

    judgment, the Hon’ble Supreme Court held as hereunder:

    “7. Before parting with the judgment, we
    would however like to observe that the
    prosecution did not examine Bharat Lal
    Sharma, Sub-Inspector, who was the
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    investigating officer of the case. It was
    desirable for the prosecution to produce
    the investigating officer at the trial
    notwithstanding the fact that the various
    documents which were to be proved by
    the investigating officer were accepted by
    the defence as genuine documents and
    were not disputed. However, the non-
    examination of the investigating officer
    does not in any way create any dent in the
    prosecution case much less affect the
    credibility of the otherwise
    trustworthiness of the oral testimony of
    the eyewitnesses which we have
    accepted.”

    (iii) The position is otherwise where the withheld IO

    was the one who conducted the substantive investigation and

    his absence deprives the defence of testing crucial aspects of

    the prosecution case.

    (iv) Here, the explanation for his non-examination

    is on record, but the defence has been deprived of the

    opportunity to cross-examine him on crucial aspects such as

    objective findings at the spot, contradictions/omissions in the

    previous statements of PWs 1-4, and reasons for dropping

    some named accused. This is precisely the kind of lacuna

    that’s treated material. The second IO (PW-6) admitted that he
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    had done virtually nothing except recording statements of two

    witnesses and filing the supplementary charge sheet. In such

    circumstances, prejudice to the defence is apparent, and an

    adverse inference under Section 114, Illustration (g) of the

    Evidence Act must be drawn against the prosecution for

    withholding the best available evidence on the investigation.

    C. Defective Examination under Section 313

    Cr.P.C.

    The examination of the accused persons under

    Section 313 Cr.P.C. was highly unsatisfactory. Generic and

    omnibus questions appear to have been put to all the

    appellants without distinguishing their individual roles or

    specifically confronting them with the incriminating

    circumstances appearing in the evidence. This has denied the

    appellants a fair and meaningful opportunity to explain the

    evidence against them. In a case involving multiple accused

    with varying degrees of alleged participation, such a defective

    examination causes prejudice and vitiates the conviction to

    that extent. Reliance on this point may be placed by referring

    to the decision of the hon’ble Supreme Court, in Maheshwar

    Tigga v. State of Jharkhand, reported in (2020) 10 SCC 108.

    The Court summarised the principles of the standard of proof
    Patna High Court CR. APP (DB) No.78 of 2019 dt.08-07-2026
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    on which the accused are to be examined. The relevant

    paragraphs of the said judgment are reproduced below:

    “8. It stands well settled that
    circumstances not put to an accused
    under Section 313 CrPC cannot be used
    against him, and must be excluded from
    consideration. In a criminal trial, the
    importance of the questions put to an
    accused are basic to the principles of
    natural justice as it provides him the
    opportunity not only to furnish his
    defence, but also to explain the
    incriminating circumstances against him.
    A probable defence raised by an accused
    is sufficient to rebut the accusation
    without the requirement of proof beyond
    reasonable doubt.

    9. This Court, time and again,
    has emphasised the importance of putting
    all relevant questions to an accused
    under Section 313 CrPC. In Naval
    Kishore Singh v. State of Bihar [Naval
    Kishore Singh
    v. State of Bihar, (2004) 7
    SCC 502 : 2004 SCC (Cri) 1967] , it was
    held to be an essential part of a fair trial
    observing as follows: (SCC p. 504, para

    5)
    “5. The questioning of the
    accused under Section 313 CrPC was
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    done in the most unsatisfactory manner.

    Under Section 313 CrPC the accused
    should have been given opportunity to
    explain any of the circumstances
    appearing in the evidence against him. At
    least, the various items of evidence, which
    had been produced by the prosecution,
    should have been put to the accused in
    the form of questions and he should have
    been given opportunity to give his
    explanation. No such opportunity was
    given to the accused in the instant case.

    We deprecate the practice of putting the
    entire evidence against the accused put
    together in a single question and giving
    an opportunity to explain the same, as the
    accused may not be in a position to give a
    rational and intelligent explanation. The
    trial Judge should have kept in mind the
    importance of giving an opportunity to
    the accused to explain the adverse
    circumstances in the evidence and the
    Section 313 examination shall not be
    carried out as an empty formality. It is
    only after the entire evidence is unfurled
    the accused would be in a position to
    articulate his defence and to give
    explanation to the circumstances
    appearing in evidence against him. Such
    an opportunity being given to the accused
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    is part of a fair trial and if it is done in a
    slipshod manner, it may result in
    imperfect appreciation of evidence.”

    24. Point No. (vi): Final Conclusion on

    Conviction and Sentence

    (i) Taking an overall view of the matter, this Court

    is of the firm opinion that the prosecution has succeeded in

    proving that an assault took place on the deceased Subhash

    Singh in which the appellants were involved, causing injuries

    that ultimately led to his death. However, due to the interested

    nature of the eye-witnesses, lack of independent

    corroboration, delayed FIR, medical ambiguity regarding the

    nature of weapons, defective investigation, non-examination

    of the first IO, and defective Section 313 Cr.P.C. examination,

    the prosecution has failed to prove beyond reasonable doubt

    that all the appellants shared the common object to cause the

    death of the deceased so as to attract liability under Section

    302 read with Section 149 IPC.

    (ii) The conviction of the appellants under Sections

    147, 148 and 341 IPC is upheld. Their conviction under

    Section 302 read with Section 149 IPC is altered to Section

    304 Part-I read with Section 149 IPC for the appellants

    against whom specific overt acts have been proved, and to
    Patna High Court CR. APP (DB) No.78 of 2019 dt.08-07-2026
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    Section 304 Part-II read with Section 149 IPC for the

    remaining appellants. The sentence is reduced to the period

    already undergone by them, subject to payment of fine (if not

    already paid). The appellants shall be released forthwith if not

    required in any other case.

    25. Conclusion:

    (i) In view of the detailed discussion above, these

    criminal appeals are partly allowed with the following

    conclusions:

    (ii) The conviction of all the surviving appellants

    under Sections 147, 148 and 341 of the Indian Penal Code is

    upheld.

    (iii) The conviction of the appellants under Section

    302 read with Section 149 IPC is set aside. Instead, their

    conviction is altered as under:

    (a) Against whom specific overt acts of using

    deadly weapons (axe, sword, spear) have been attributed

    (Mantu @ Gautam Singh, Santosh Singh, Budhdev Singh, and

    Yamuna Singh): Section 304 Part-I read with Section 149 IPC.

    (b) For the remaining appellants (against whom

    only general allegations of assault with lathis/sticks have been

    made): Section 304 Part-II read with Section 149 IPC.

    Patna High Court CR. APP (DB) No.78 of 2019 dt.08-07-2026
    38/39

    (iv) The sentence is modified accordingly. The

    appellants are sentenced to the period already undergone by

    them in custody (with set-off under Section 428 Cr.P.C.),

    subject to payment of the fine of Rs. 1,00,000/- (Rupees One

    Lakh) each, if not already paid. In default of payment of fine,

    each appellant shall undergo further rigorous imprisonment

    for two years. Sentence for payment of fine shall run

    separately.

    (v) The appeals of the two deceased appellants stand

    abated.

    (vi) The appellants shall be released forthwith from

    custody, provided payment of fine be made by them, if not

    required in connection with any other case.

    (vii) The fine amount, if realized, shall be paid as

    compensation to the legal heirs of the deceased Subhash Singh

    under Section 357 Cr.P.C.

    (viii) The impugned judgment of the trial court

    stands modified to the extent indicated above. The trial court

    shall take necessary steps for compliance and release of the

    appellants.

    (ix) Let a copy of this judgment be sent to the

    learned trial court along with the lower court records for
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    necessary action.

    (Bibek Chaudhuri, J)

    Rana Vikram Singh, J: I agree.

    (Rana Vikram Singh, J)

    skm/-

    AFR/NAFR                NAFR
    CAV DATE                24.06.2026
    Uploading Date          08.07.2026
    Transmission Date       08.07.2026
     



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