Bhushan Yadav and Ors vs The State Of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.760 of 2018
Arising Out of PS. Case No.-47 Year-1993 Thana- HALSI District- Lakhisarai
======================================================
1. Bhushan Yadav and Ors Son of Shaho Yadav @ Sahdeo Yadav,
2. Sunil Yadav, Son of Shahdeo Yadav @ Sahdeo Yadav,
3. Arjun Yadav, Son of Muni Yadav @ Muneshwar Yadav, All are resident of
Village- Ballopur, P.S.- Halsi, District- Lakhisarai.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Anuj Kumar, Advocate
For the Respondent/s : Ms. Shashi Bala Verma, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
and
HONOURABLE MR. JUSTICE RANA VIKRAM SINGH
C.A.V. JUDGMENT
(Per: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI)
Date : 07-09-2026
The aforementioned appeal has been filed challenging the
judgment of conviction dated 16.05.2018 and the order of
sentence dated 22.05.2018 passed by the learned ADJ-cum-Fast
Tract Court No.1, Lakhisarai in Sessions Trial No. 436 of 1996
arising out of Halsi P.S. Case No. 47 of 1993 whereby all the
accused mentioned above were convicted under Sections 302/34
of the Indian Penal Code and sentenced to undergo rigorous
imprisonment for life and to pay a fine of Rs. 5000/- (five

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thousand) each; and in default of payment of fine, all the
convicts were directed to further undergo rigorous imprisonment
for two months.
2. The prosecution story, as narrated in the fardbeyan of
the informant, Karyanand Yadav, dated 03.06.1993, is that on
30.05.1993, at about 10:30 PM, while he was sleeping at his
doorstep, he heard a commotion with cries of "Chor Chor"
coming from the side of the boring belonging to his bagina
(nephew), Suresh Yadav. Upon hearing the alarm, he, along with
Rameshwar Yadav, Bharat Yadav, Bannu Yadav, and other
villagers, proceeded to the boring, which was set up in the field
of Suresh Yadav. There, they found Suresh Yadav lying injured,
with blood oozing from his stomach. Umesh Yadav was tying a
cloth around his injured stomach. Upon being asked, Umesh
Yadav informed him that he was going to the boring to deliver
food to Suresh Yadav when 5-6 accused persons, armed with
lathis and bhalas , arrived at the boring. On noticing them,
Umesh Yadav called out to Suresh Yadav, saying "Bhaiya-
Bhaiya," asking who was present there. As soon as Suresh
Yadav woke up, the accused persons began assaulting him.
When Suresh Yadav attempted to flee towards the north, he was
assaulted in the stomach with a bhala by accused Daso Kebat

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(appellant in Cr. APP (DB) No. 802 of 2018). The other
identified accused were Saryug Yadav, Bhushan Yadav, Sunil
Yadav, and Sahdeo Yadav, who were armed with bhalas and
lathis , and who also participated in the assault upon Suresh
Yadav. The injured Suresh Yadav stated to the informant that he
was first assaulted with a bhala by Daso Kebat, and thereafter
by accused Saryug Yadav (appellant in Cr. APP (DB) No. 822 of
2018), who also struck him in the stomach with a bhala . Suresh
Yadav further stated that all the accused persons had come with
the intention of committing theft of the boring machine.
Thereafter, Umesh Yadav, the informant, and other villagers
carried the injured Suresh Yadav, who was in an unconscious
state, to Sikandra Government Hospital. However, the doctors
there refused to provide treatment. He was then taken to
Mokama Hospital, where the doctors were reportedly on leave.
Subsequently, Suresh Yadav was brought to Patna, where he was
admitted to N.M.C.H., Patna, for treatment. During the course
of treatment, he succumbed to his injuries on Monday. The
fardbeyan of the informant, Karyanand Yadav, was recorded on
03.06.1993 at 03:00 PM by S.I. B.Ram of Halsi Police Station.
3. On the basis of the fardbeyan of the informant, Halsi
P.S. Case No. 47/93 was registered under Sections 382 and

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302/34 of the I.P.C. against all the named accused persons.
Upon completion of the investigation, the Investigating Officer
submitted a charge-sheet against six accused persons named in
the F.I.R., including the appellant in the present matters.
Consequently, cognizance was taken on 04.05.1996, and the
case was committed to the Court of Sessions on 07.06.1996.
Thereafter, charges were framed on 22.02.2000 against the
accused persons under Sections 302/34 and 382 of the I.P.C.
Upon denial of the charges by the accused persons, the trial
proceeded. However, during the pendency of the trial, one of the
accused, namely Sahdeo Yadav, died. Accordingly, only the
remaining five accused persons faced the trial. The prosecution
evidence was closed on 13.06.2017.
4. On 13.06.2017, the statements of the accused persons
were recorded under Section 313 of the Cr.P.C., wherein they
denied the prosecution allegations in toto and claimed
themselves to be innocent.
5. In order to prove its case, the prosecution examined
altogether seven witnesses. Among them, P.W.1 is Karyanand
Yadav (informant), P.W.2 Bharat Yadav, P.W.3 Madan Yadav,
P.W.4 Umesh Yadav, P.W.5 Jagdish Yadav, P.W.6 Bouni Yadav,
and P.W.7 Ramsnehi Pandit.

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The following documentary evidence has been adduced
on behalf of the prosecution:
Ext. 1 Signature of the informant on the fardbeyan ;
Ext. 2 Carbon copy of the inquest report of the
deceased, Suresh Yadav;
Ext. 3 Formal F.I.R.
6. During examination-in-chief, P.W.1, Karyanand Yadav
(informant), deposed that he is the informant of the case. He
stated that upon hearing the 'hulla', he proceeded to the boring
of Suresh Yadav along with others and found Suresh Yadav
lying injured, with blood oozing from his stomach. He further
stated that Umesh Yadav informed him that he had gone to the
boring to deliver food to Suresh Yadav and saw 5-6 accused
persons present there, who were attempting to detach the boring
machine. The accused persons were armed with bhalas and
lathis . Umesh Yadav raised an alarm by shouting "Kaun aaya,
Kaun aaya," upon which Suresh Yadav woke up. Thereafter, the
accused persons chased Suresh Yadav with the intention to
assault him, and while he was fleeing towards the northern side,
he was assaulted with a bhala by Daso Kebat and Saryu Yadav.
He was also assaulted with lathis by Bhushan Yadav, Sunil
Yadav, and Sahdeo Yadav. The witness further stated that

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Umesh Yadav told him that Suresh Yadav had sustained a bhala
injury on his stomach. He also deposed that the injured Suresh
Yadav disclosed the names of the accused persons who had
assaulted him with the bhala . He stated that Suresh Yadav was
taken to Sikandra Hospital by the informant and other villagers,
where the doctor referred him to Patna for further treatment.
Thereafter, the injured was taken to Mokama Hospital, but as
the doctors were not available and were reportedly on leave, he
was taken to N.M.C.H., Patna, where he subsequently died. The
witness stated that his fardbeyan was recorded on 03.06.1993,
and his signature on the fardbeyan was marked as Ext. 1.
During cross-examination, the witness stated that he did
not accompany Suresh Yadav and Umesh Yadav to Patna for
treatment and, therefore, could not say with certainty at which
hospital Suresh Yadav was treated.
7. During examination-in-chief, P.W.2, Bharat Yadav,
deposed that the occurrence took place about seven years prior
at approximately 10:30 PM, while he was sleeping at his
doorstep. Upon hearing a commotion from the side of the boring
of Suresh Yadav, he woke up and proceeded there along with
others. He stated that Suresh Yadav told him that Daso Kebat
had assaulted him with a bhala on his stomach. He saw Suresh

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Yadav lying injured, with blood oozing from his stomach. He
further stated that the injured was taken to Sikandra Hospital,
then to Mokama Hospital, and thereafter to N.M.C.H., Patna,
where he died during the course of treatment.
8. P.W.3, Madan Yadav, deposed that the occurrence took
place on 30.05.1993 at about 10:30 PM. He stated that while he
was at his house, he heard cries of "Chor Chor" and went to the
boring of Suresh Yadav along with others. He saw Suresh Yadav
lying injured with a bhala injury on his stomach. He further
stated that, in the moonlight, he saw Daso Kebat, Saryug Yadav,
Bhushan Yadav, Sahdeo Yadav, and Arjun Yadav fleeing away
from the place of occurrence. He deposed that Suresh Yadav
told him that Daso Kebat had assaulted him with a bhala on his
stomach and that the remaining accused persons had also
assaulted him with lathis and bhalas . Suresh Yadav also stated
that the accused persons had come there with the intention of
committing theft of the boring machine.
During cross-examination, the witness stated that he had
merely seen the injured Suresh Yadav lying at the place of
occurrence. He further admitted that he did not witness the
assault upon Suresh Yadav with his own eyes.
9. P.W.4, Umesh Yadav, deposed that the occurrence took

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place on 30.05.1993 at about 10:30 PM. He stated that he had
gone to the boring to deliver food to Suresh Yadav and saw
accused Daso Kebat, Bhushan Yadav, Saryu Yadav, Sunil Yadav,
Sahdeo Yadav, and Arjun Yadav present there with the intention
of committing theft of the boring. He further stated that he
raised an alarm by shouting "Chor Chor," upon which Suresh
Yadav woke up. Thereafter, accused Daso Kebat assaulted
Suresh Yadav with a bhala on his stomach, followed by accused
Saryug Yadav, who also assaulted him with a bhala .
He further stated that the other accused persons assaulted Suresh
Yadav with a paina . He deposed that he tied the stomach of
Suresh Yadav with a gamcha . The injured was first taken to
Sikandra Hospital, then to Mokama Hospital, and finally to
Patna, where he died during the course of treatment.
During cross-examination, the witness stated that he had
accompanied Suresh Yadav to Patna for treatment and that
Suresh Yadav died there during treatment. He denied the
suggestion that his fardbeyan was recorded at N.M.C.H., Patna,
by the Alamganj Police.
10. P.W.5, Jagdish Yadav, deposed that the occurrence
took place about seven years prior at approximately 10:30 PM.
He stated that upon hearing the commotion, he went to the

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boring of Suresh Yadav along with others and saw Suresh Yadav
lying injured, with blood oozing from his stomach.
During cross-examination, the witness stated that Umesh
Yadav arrived at the place of occurrence about five minutes after
his arrival.
11. P.W.6, Bonnu Yadav, the brother-in-law (sadhu) of the
deceased, deposed that the deceased was taken to Patna for
treatment and never regained consciousness.
12. P.W.7 Ram Sanehi Pandit, formally proved the formal
F.I.R. Initially marked as Ext. 1, upon correction it was
renumbered and marked as Ext. 3.
13. On the other hand, defence has produced neither oral
evidence nor documentary evidence.
14. After closure of the evidence, the Trial Court
examined the accused under Section 313 of the Code of
Criminal Procedure and put to him specific questions relating to
the commission of the offence.
15. The Trial Court, upon considering the entire oral and
documentary evidence, found that the charges levelled against
the accused has been proved beyond all reasonable doubts.
Accordingly, the appellant was convicted under Section 302/34
of the Indian Penal Code.

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16. Being aggrieved and dissatisfied with the judgment of
conviction dated 16.05.2018 and the order of sentence dated
22.05.2018, the appellants have preferred the present criminal
appeal.
17. Heard learned counsel for the appellant and learned
APP for the State in both the appeals.
18. Learned counsel for the appellants submits that, and
from perusal of the FIR, it is apparent that the date of
occurrence is 30.05.1993, the FIR was lodged on 03.06.1993,
forwarded to the concerned Judicial Magistrate on 05.06.1993.
It is further submitted that neither the Investigating Officer nor
the Doctor has been examined in the present case, and the post-
mortem report has also not been brought on record. Out of the
seven prosecution witnesses examined, PW-1 is the informant.
From the statement made in the fardbeyan , it becomes clear that
PW-1 is only a hearsay witness. PW-2, a co-villager, is also a
hearsay witness who has stated that upon hearing halla, he went
to the place of occurrence. PW-3, another co-villager, similarly
reached the place of occurrence after hearing the alarm and is,
therefore, also a hearsay witness. Learned counsel further
submits that PW-4, the alleged eye-witness and brother of the
deceased, has made statements which are in complete

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contradiction to the evidence of PW-5. PW-4 has stated that he
saw the appellants assaulting the deceased with a bhala ,
whereas PW-5 has categorically stated that he reached the place
of occurrence first and that PW-4 (the brother of the deceased)
arrived there after about 10 minutes. PW-5 has further deposed
in his cross-examination that there was an ongoing dispute in
the village between the deceased and one Saryug Sah; however,
the said Saryug Sah has not been made an accused in the present
case. It is also submitted that the FIR has been exhibited through
a formal witness and not through the Investigating Officer,
Learned counsel further submits that although the FIR was
lodged on 03.06.1993, the inquest report was prepared on
31.05.1993, which, according to the appellants, falsifies the
prosecution case. PW-6, a relative of the deceased, never
reached the place of occurrence and instead accompanied the
injured to Patna. It is also contended that the examination of the
accused under Section 313 Cr.P.C. is defective. In the absence of
the examination of the Investigating Officer and the doctor, and
in the absence of the post-mortem report and medical evidence
regarding the injuries, the entire prosecution case collapses. The
prosecution, therefore, has failed to prove its case beyond
reasonable doubt.

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19. Learned APP for the State, on the other hand, submits
that there is a specific allegation in the FIR that the appellant in
Criminal Appeal (DB) No. 802 of 2018, Daso Kewat, inflicted
the first bhala blow and the appellant in Criminal Appeal (DB)
No. 822 of 2018, Saryug Yadav, inflicted the second bhala blow,
while the other accused assaulted the deceased with lathis .
Thereafter, all the accused allegedly went to the boring of the
deceased with an intention to commit theft of the engine of the
boring machine. It is further submitted that the eye-witness in
the case is PW-4, the brother of the deceased, who has
categorically stated that when his brother went to his boring, he
saw the present appellants and others there with the intention of
committing theft. Upon PW-4 raising alarm, appellant Daso
Kewat assaulted the deceased with a bhala and Saryug Yadav
also inflicted a bhala blow. PW-4 has further stated that in the
moonlight (chandani raat), he was able to identify all the
accused persons and has also identified them in the witness box.
Learned APP fairly concedes that it is true that the Investigating
Officer and the doctor have not been examined and the post-
mortem report is not on record, but submits that the death of the
deceased is not in dispute and there is a direct and specific
allegation made by PW-4 against the present appellants.

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Therefore, no interference is warranted with the judgment and
order of conviction passed by the learned trial court, and both
the appeals are liable to be dismissed.
20. Upon hearing the parties and perusal of the record, it
transpires that seven prosecution witnesses have been examined.
PW-1 is a co-villager of the deceased. From the contents of the
FIR and his deposition, it appears that he reached the place of
occurrence after hearing halla and found the deceased in an
injured condition, with his brother Umesh Yadav tying a
gamcha around his stomach. It was Umesh Yadav who informed
him that the present appellants and others had assaulted the
deceased with a bhala . The informant has also stated that Suresh
Yadav disclosed that one bhala blow was inflicted by Daso
Kewat and another by Saryug Yadav. However, in cross-
examination, PW-1 admitted that at the time of occurrence he
was not present at the place of occurrence and was about half a
kilometer away. Thus, he is not an eye-witness but a hearsay
witness. He has also not proved the fardbeyan . PW-2, another
co-villager, has not identified any specific assailant. He stated
that he received information regarding the assault from Umesh
Yadav. He further deposed that the inquest report was prepared
in his presence and that his signature appears on the inquest

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report (Exhibit-II). The inquest report shows that it was
prepared on 31.05.1993 at 14:00 hours in the Emergency Room
of NMCH, Patna. However, the FIR was lodged on 03.06.1993.
It is surprising that the inquest report was prepared on
31.05.1993 whereas the FIR was lodged subsequently on
03.06.1993. The inquest report was prepared by the Sub-
Inspector of Alamganj Police Station, Patna, whereas the
fardbeyan was recorded at Halsi Thana, District Lakhisarai. This
indicates that the prosecution has failed to produce the FIR, if
any, on the basis of which Alamganj Police Station conducted
the inquest. The delay in lodging the FIR has also not been
explained either in the FIR or in the deposition of the informant.
Thus, PW-1 and PW-2 appear to be hearsay witnesses. PW-3,
also co-villager, reached the place of occurrence after hearing
the alarm and stated in cross-examination that he saw the
deceased in an injured condition but did not see any of the
accused persons there, as they had already fled. Hence, PW-3
also does not support the prosecution case as eye-witness. PW-
4, the alleged eye-witness and brother of the deceased, has
identified all the accused persons and stated in his examination-
in-chief that the present appellants assaulted the deceased with a
bhala . However, PW-5, another co-villager, deposed that he

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reached the place of occurrence first and stated in cross-
examination that PW-4 arrived there after about 10 minutes.
PW-5 also stated that on the same day there was a dispute
between the deceased and one Saryug Sah regarding a loan, but
Saryug Sah has not been made an accused in this case. A
conjoint reading of the evidence of PW-4 and PW-5 reveals
sharp contradictions. The prosecution has not declared PW-5
hostile, therefore, his evidence remains on record and must be
considered. PW-6, relative of the deceased, has merely stated
that Umesh Yadav is his brother-in-law (sadhu) and that he
accompanied the injured to Patna. PW-7 is an advocate's clerk
through whom the FIR has been marked as Exhibit-1.
21. It is indeed an unfortunate situation that the
prosecution has failed to examine the Investigating Officer as
well as the doctor, which is a serious lapse in the present appeal.
The post-mortem report has also not been exhibited.
Furthermore, the person who recorded the fardbeyan has not
been examined. These are not minor irregularities but
substantial lacunae in the prosecution case.
22. In Pankaj v. State of Rajasthan , reported in (2016)
16 SCC 192 , the Hon'ble Supreme Court held that when the
genesis and manner of the incident itself are doubtful,

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conviction cannot be sustained. The Hon'ble Supreme Court in
paragraph no. 25 of the aforesaid judgement has held as under:
"25. It is well-settled principle of law that
when the genesis and the manner of the incident
is doubtful, the accused can not be convicted.
Inasmuch as the prosecution the has failed to
establish the circumstances in which the
appellant was alleged to have fired at the
deceased, the entire story deserves to be
rejected. When the evidence produced by the
prosecution has neither quality nor credibility, it
would be unsafe rest conviction upon such
evidence. After having considered the matter
thoughtfully, we find that the evidence on record
in the case is not sufficient to bring home the
guilt of the appellant. In such circumstances, the
appellant is entitled to the benefit of doubt."
Here in the present case, in the absence of the testimony
of the Investigating Officer, the defence has been deprived of
the opportunity to confront the prosecution with contradictions
and omissions in the statements of witnesses recorded.
Similarly, non-examination of the doctor and non-production of
the post-mortem report deprive the Court of reliable medical
evidence regarding the nature of injuries, cause of death, and the
manner in which the injuries were inflicted. These lapses are not
mere procedural irregularities but go to the root of the matter.
Further, the contradictions in the statements of the prosecution

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witnesses, coupled with the absence of medical and
investigative evidence, substantially weaken the prosecution
case. Taken together, these deficiencies create serious doubt
about the prosecution version and render it unsafe to sustain the
conviction solely on such infirm evidence.
23. In Munna Lal v. State of U.P., reported in (2023) 18
SCC 661 , the Hon'ble Supreme Court ruled that the failure to
seize the weapon of offence dents the prosecution story, leading
to the benefit of doubt for the accused. The relevant paragraph
of the judgment is reproduced below:
"40. In the facts of the present case,
particularly conspicuous gaps in the
prosecution case and the evidence of PW
2 and PW 3 not being wholly reliable,
this Court holds the present case as one
where examination of the investigating
officer was vital since he could have
adduced the expected evidence. His non-
examination creates a material lacuna in
the effort of the prosecution to nail the
appellants, thereby creating reasonable
doubt in the prosecution case."
In the present case, the non-examination of the
Investigating Officer as-well-as the doctor, coupled with the
non-exhibition of the post-mortem report, creates a material the
doctor, coupled with the lacuna in the prosecution case. These

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omissions strike at the very root of the prosecution story and
significantly impair its ability to establish the manner of
occurrence, the cause of death, and the nexus between the
alleged acts of the appellants and the injuries sustained by the
deceased. Such deficiencies do not merely amount to procedural
irregularities but go to the core of the matter, thereby seriously
prejudicing the case of the prosecution.
24. Hence, in light of the discussions made hereinabove
and upon applying the principles laid down by the Hon'ble
Supreme Court of India in the decisions referred to earlier, we
are of the considered and firm view that the prosecution has
failed to prove the guilt of the appellants beyond all reasonable
doubt. Accordingly, the appellants are entitled to the benefit of
doubt.
25. In result, the judgment of conviction dated 16.05.2018
and the order of sentence dated 22.05.2018 passed by the
learned ADJ-cum-Fast Tract Court No.I, Lakhisarai in Sessions
Trial No. 436 of 1996 arising out of Halsi P.S. Case No. 47 of
1993, are perverse and are hereby set aside.
26. In result, the appeal above-mentioned is hereby
allowed.
27. The appellants are acquitted of all charges.

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28. The appellants shall be released forthwith, if their
presence is not required in any other case.

(Bibek Chaudhuri, J)
Rana Vikram Singh, J : I agree
(Rana Vikram Singh, J)
Jyoti Kumari/-
AFR/NAFR NAFR
CAV DATE 24.08.2026
Uploading Date 07.09.2026
Transmission Date 07.09.2026