IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL REVISION No.506 of 2009

Arising Out of PS. Case No.-117 Year-2002 Thana- CHAINPUR District- Kaimur (Bhabua)

======================================================

1.Vansh Prakash Singh, Son of Late Jang Bahadur Singh, Resident of village -

Nand Gaon, Sahawal, P.S.- Chainpur, Dist.- Bhabhua.

2.Vijay Bahadur Singh, Son of Late Jang Bahadur Singh, Resident of village -

Nand Gaon, Sahawal, P.S.- Chainpur, Dist.- Bhabhua.

3.Om Prakash Singh, Son of Late Jang Bahadur Singh, Resident of village -

Nand Gaon, Sahawal, P.S.- Chainpur, Dist.- Bhabhua.

... ... Petitioner/s

Versus

1.The State of Bihar

2.Faujdar Yadav, Son of Chedhari Yadav, R/O Village - Nand Gaon (Suhawal), P.S.-

Chainpur, Dist.- Kaimur (Bhabhua).

... ... Respondent/s

======================================================

with

CRIMINAL APPEAL (SJ) No. 552 of 2008

======================================================

Faujadar Yadav

... ... Appellant/s

Versus

The State of Bihar

... ... Respondent/s

======================================================

Appearance :

(In CRIMINAL REVISION No. 506 of 2009)

For the Petitioner/s: Mr. Vivekanand Vivek, Advocate

Mr. Debesh Kumar Poddar, Advocate

Mr. Rang Nath Pandey, Advocate

For the Respondent/s: Mr. C. Jawahar, APP

(In CRIMINAL APPEAL (SJ) No. 552 of 2008)

For the Appellant/s: Mr. Vivekanand Singh, Advocate

Mr. Naveen Kumar, Advocate

Mr. Nitish Kumar, Advocate

For the Respondent/s: Mr. Nirsingh Kr. Singh, APP

Mr. Vivekanand Vivek, Advocate

Mr. Debesh Kumar Poddar, Advocate

Mr. Rang Nath Pandey, Advocate

======================================================

CORAM: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA

C.A.V. JUDGMENT

Date : 28-04-2026

1. The present matters arise out of a same judgment

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of conviction and order of sentence dated 11.06.2008 passed by

the learned Additional District and Sessions Judge, F.T.C.-II,

Kaimur at Bhabhua (hereinafter referred to as ‘Trial Court’) in

Sessions Trial No. 8 of 2004/25 of 2008, whereby the opposite

party no.2 (appellant in the connected appeal) has been

convicted under Sections 325, 452 and 323 of the Indian Penal

Code, 1860 (hereinafter referred to as ‘IPC’) and sentenced to

undergo rigorous imprisonment for seven years along with fine.

2. Two proceedings have been preferred against the

said judgment—one, a criminal revision filed by the informant

(now deceased represented by her legal heirs) against acquittal

of accused Fauzdar Yadav under Section 302 of the IPC,

contending that the evidence on record clearly establishes the

offence of murder; and the other, a criminal appeal filed by the

convict challenging his conviction and sentence, asserting false

implication and insufficiency of evidence.

3. Since both the revision and the appeal arise out

of the same impugned judgment and involve common questions

of fact and law, they have been heard together and are being

disposed of by this common judgment.

4. Heard learned counsel for the parties as well as

the learned APP for the State.

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5. The prosecution case, as emerging from the

fardbeyan of the informant, namely, Dharamshila Devi (P.W.3)

is that on the night of 12.12.2002 at about 09:00 P.M., while she

was present in her house along with her husband, Jung Bahadur

Singh (deceased), and her minor son aged about 8 years (P.W.1),

the opposite party no.2/appellant (Faujadar Yadav) allegedly

entered into her house. Upon being questioned, the opposite

party no.2/appellant assaulted her husband on the head with a

khanti, causing him to fall unconscious, and also assaulted the

informant when she intervened. On her alarm, nearby villagers

arrived at the place of occurrence and witnessed the incident.

Due to non-availability of conveyance, injured Jung Bahadur

Singh was taken for medical treatment on the following day i.e.,

on 13.12.2002. Also, on the same day, based on the statement of

the informant, F.I.R. bearing Chainpur P.S. Case No.117 of 2002

was registered against the accused person (opposite party

no.2/appellant) under Sections 323, 325, 452 and 307 of the

IPC. Furthermore, injured Jung Bahadur Singh during his

treatment at Banaras died on 20.12.2002, whereupon Section

302 of the IPC was added vide order dated 04.01.2003 to the

F.I.R. which was initially registered under Sections 323, 325,

452 and 307 of the IPC.

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6. Upon completion of the investigation, charge-

sheet bearing C.S. No.60 of 2003 in connection with Chainpur

P.S. Case No.117 of 2002 was submitted under Sections 452,

323 and 302 of the IPC, and the case was committed to the

learned Trial Court. Subsequently, charges were framed by the

learned Trial Court vide order dated 23.01.2004 against the

accused person (opposite party no.2/appellant) under Sections

302, 323 and 452 of the IPC, wherein the opposite party

no.2/appellant pleaded not guilty and claimed trial.

7. During the trial, the prosecution has examined

altogether ten witnesses, including the informant and other

alleged eye-witnesses, as well as medical and formal witnesses,

to prove charges against the appellant, who are as under:

P.Ws.Names

P.W.1Vansh Prakash Singh (Minor son of the deceased

Jung Bahadur Singh)

P.W.2Pritam Gosai (Co-villager of the deceased)

P.W.3Dharamshila Devi (Informant/wife of the deceased)

P.W.4Kameshwar Singh (Father-in-law of the

deceased/formal witness)

P.W.5Anil Kumar Singh (Formal witness)

P.W.6Dr. Indrajit Prakash (Doctor who examined injuries

of the informant and the deceased at Primary Health

Centre, Chainpur and issued Injury Report)

P.W.7Deo Kumar Singh (Formal witness)

P.W.8Imanwel Tirki (I.O. of the case)

P.W.9Dr. J.P. Tripathi (Doctor who has conducted

postmortem of the deceased.)

P.W.10Rajendra Singh (Formal witness)

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8. Moreover, in support of their case, the

prosecution has exhibited following documentary evidence:

Exts.Particulars

Ext.1Inquest Report

Ext.1/1Signature of Anil Kumar Singh on Inquest Report

Ext.2 to

2/1

Injury Report of the Informant and the deceased

Ext.2/2

to 2/3

Forwrading letter of the injured persons

Ext.3Letter by Sir Sundarlal Hospital to O/C Lanka,

Varanasi

Ext.4Police Form No.13

Ext.5Postmortem Report

Ext.6Fardbeyan of the Informant Dharamshila Devi

Ext.7F.I.R.

9. In order to have a clear understanding of the

case, it would be apposite to notice the testimony of the

prosecution witnesses.

10. P.W.1, Vansh Prakash Singh, who is the son of

deceased Jung Bahadur Singh (aged about 8 years at the time of

occurrence), has deposed that the occurrence took place at about

8:00-9:00 P.M. when he was sitting in the verandah of his house

along with his parents, while his cousins Sachida and Manoj

(both not examined) were in the upper room. He stated that at

that time the accused Fauzdar entered their house, whereupon

his father questioned him as to why he was entering. In the light

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of a lamp burning in the verandah, he identified the accused. He

further deposed that when his father went to apprehend the

accused, the accused dragged his father into the dalan/room and

assaulted him with a “khanti”, causing injuries on his head by

striking twice, and when his father fell down, he further

assaulted him on the back. He and his mother raised alarm, and

when his mother tried to intervene, the accused also assaulted

her with the lathi of that khanti on her stomach and head. Upon

their alarm, Pritam (P.W.2), Manoj and Sachida arrived and

witnessed the assault. Thereafter, the accused fled away and his

father became unconscious. He further stated that on the next

morning, his father was taken by villagers to Chainpur Hospital

and thereafter referred to Banaras University Hospital, where

after about eight days, his father succumbed to the injuries.

In cross-examination, P.W.1 stated that the accused

Fauzdar had not been visiting his house prior to the date of

occurrence. He described the structure of his house, stating that

it is a pucca house having 11-12 rooms (kothri), with a northern

entrance, dalan, courtyard (angan), verandah and rooms

(kothri), and that the door is usually closed by his mother at

about 9:30 P.M. everyday, though at the time of occurrence the

door was open. He reiterated that at the time of occurrence, he

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and his mother were in the verandah and the lamp was burning

there. He stated that his father, upon asking “kaun hai”, went

towards the accused and was dragged on the ground into the

dalan where he was assaulted. He further stated that on raising

alarm, initially no one from the neighbourhood came, but after

the accused fled, some villagers arrived. He deposed that he and

his mother went to the dalan and saw his father lying injured

with bleeding head injuries and in unconscious condition, and

thereafter, with the help of Pritam, Sachida and Manoj, shifted

him to a cot. He also stated that Sachida and Manoj had gone to

call a doctor but returned saying that the accused was standing

armed with a katta. He stated that his mother informed the

villagers, but no one came immediately, and they tied the injury

with a gamchha. He further stated that in the morning, his father

was taken to the doctor by Pritam Gosai (P.W.2) and others,

while he himself did not accompany them. He denied the

suggestion that he has falsely deposed at the instance of others

or that the accused had not committed the occurrence and that

some unknown person had assaulted his father.

11. P.W.2, Pritam Gosai who is a co-villager of the

deceased Jung Bahadur Singh, supported the prosecution’s case and

deposed that after taking his meal, he was proceeding from his

house towards the shop of Ganga Sahu to purchase bidi and, on

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reaching near the house of Jung Bahadur Singh and the shop, he

stopped in the lane to urinate. After a few minutes, he heard

shouting (halla) from the house of Jung Bahadur Singh,

whereupon he went to his door and saw that Jung Bahadur

Singh had caught hold of Fauzdar Yadav and the accused was

dragging him into the dalan. He further stated that the accused

was holding a “khanti” in his hand and assaulted Jung Bahadur

Singh with the said weapon twice on his head, as a result of

which he fell down in the dalan. He further deposed that when

the wife of Jung Bahadur Singh came to rescue him, the accused

also assaulted her with the danda of the khanti on her stomach

and head. Even after Jung Bahadur Singh fell down, the accused

dealt another blow on his back and thereafter fled away. He

stated that apart from him, the occurrence was also witnessed by

the son of Jung Bahadur Singh, and his relatives Sachida and

Manoj, and his wife. He further stated that a lantern was burning

in the verandah and in that light, as well as in the light of his

torch, he saw the occurrence and identified the accused. He

deposed that thereafter Jung Bahadur Singh was lifted and laid

on a cot in the verandah and the bleeding injury on his head was

tied with a cloth. He further stated that during the night, the

injured was not taken to hospital as villagers did not come

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forward, and in the morning, he took Jung Bahadur Singh to

Chainpur Hospital.

In his cross-examination, P.W.2 stated that prior to

the occurrence he had visited the house of Jung Bahadur Singh

2-4 times and that Jung Bahadur Singh was a big landholder

having about 100–125 bighas of land. He stated that his house is

situated about 100 yards north of the house of Jung Bahadur

Singh. He further stated that it was winter season and in the

village there are about 10-11 shops which remain open till about

9:00-9:30P.M. He stated that he had not yet purchased bidi and

was urinating in the lane adjacent to the shop of Ganga Sahu,

and that he had not reached the shop and had not seen who was

sitting there. He further stated that at that time no one else was

passing through the lane. On hearing the alarm, he went towards

the dalan door of Jung Bahadur Singh, and stated that when he

reached there, he saw injury on the head of Jung Bahadur Singh

and that at that time Jung Bahadur Singh was standing and no

conversation took place with him. He further stated that when

he reached near him, apart from the accused, his wife and two

relatives were present and no other villagers were there. He

stated that the accused fled towards the west in the lane and that

neither he nor the family members chased him. He further stated

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that he himself did not raise alarm, but the wife and relatives of

Jung Bahadur Singh were raising alarm even before his arrival.

He stated that when he reached, some persons were raising

alarm and some were lifting Jung Bahadur Singh, and that he

also helped in lifting him to the courtyard, after which 10-12

villagers came, though he had no conversation with them. He

further stated that he stayed there for about 10-15 minutes and

thereafter returned home. He further stated that in the morning,

on being requested by the wife of Jung Bahadur Singh, he went

to his house and took Jung Bahadur to the hospital and reached

Chainpur Hospital at about 07:00 A.M., where the doctor

examined him. He stated that from the time of occurrence till

07:00 A.M., no treatment was given. He further stated that

police came in the afternoon and his statement was recorded; he

met the Investigating Officer in the lane and showed him the

house, and that his statement was recorded there. He further

stated that at that time only an old woman was present and he

does not know whose statements were recorded at the house. He

denied that he did not disclose to the Investigating Officer that

he had seen the occurrence or that he was a witness. He further

stated that he had told the Investigating Officer that he had seen

the occurrence in the light of his torch and lantern, though he

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did not hand over the torch. He further stated that the dalan of

Jung Bahadur Singh is closed from all sides with one door

leading inside, and that the house is double-storeyed though he

had not gone to the upper floor. He also stated that there was no

prior enmity between him or Jung Bahadur Singh and the

accused. He denied the suggestion that he had not gone to

purchase bidi or that he had falsely deposed regarding the

occurrence.

12. P.W.3, Dharamshila Devi, who is wife of the

deceased Jung Bahadur Singh and also the informant in the

case, has deposed that at about 9:00 P.M. when she was sitting

in the verandah of her house along with her husband and her

son Vansh Prakash, while her two nephews Sachida and Manoj

had gone to the upper room after taking meals. She deposed that

at that time the accused Fauzdar entered her house, whereupon

her husband caught hold of him and questioned him as to why

he was entering the house. She further stated that a lantern was

burning on a table in the verandah and in its light she identified

the accused. She deposed that upon raising alarm by her and her

son, Sachida and Manoj came down from the roof and Pritam

also came at the door, and in the meantime, the accused dragged

her husband into the dalan room and assaulted him with a

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“khanti” by giving two blows on his head, causing his head to

split open. She further stated that even after her husband fell

down, the accused assaulted him with the handle of the khanti

on his back. When she tried to rescue her husband, the accused

assaulted her also with the handle of the khanti on her stomach

and head. She stated that after the assault, her husband fell down

unconscious and the accused fled away. She further deposed that

the occurrence was also witnessed by Sachida, Manoj, Vansh

Prakash and Pritam. Thereafter, her husband was lifted and laid

on a cot in the verandah and his injuries were tied with a

gamchha. She further stated that Sachida and Manoj went to call

villagers for taking her husband to the hospital but no one came

due to fear of the accused, who was stated to be hiding with a

katta. She also stated that on the next morning, her husband was

taken on a cot to Chainpur Primary Health Centre, where the

doctor examined both her and her husband and advised that his

condition was serious and he be taken to Banaras. She stated

that thereafter she returned to the village with Sachida and

Manoj to arrange money and clothes, met the police officer who

made inquiries and was shown the place of occurrence, and

thereafter her husband was taken to Banaras University

Hospital, where after 7-8 days, he died. She identified the

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accused present in Court.

In her cross-examination, P.W.3 stated that her

husband was an influential person in the village and had no

enmity with anyone. She further stated that she is pardanashin

and has limited interaction outside her house and that no

outsider used to enter inside the house, rather people would

meet in the dalan. She stated that the accused Fauzdar had never

visited her house earlier and she does not know his family

members. She further stated that Pritam Gosai never used to

come inside her house and she had no conversation with him

earlier. She described the structure of her house, stating that

there are about 13 rooms around the courtyard and four rooms

on the upper floor, and that there is no electricity connection and

on the date of occurrence a lantern was burning. She further

stated that the main door of the house opens towards the east

and leads to the dalan and then to the lane, and that the dalan

has rooms on both sides and is surrounded by a boundary wall.

She stated that at about 9:00-9:30 P.M., when they were sitting

on the cot, all the doors including the main gate and dalan door

were open. She further stated that she heard a knocking sound

from the dalan side and her husband went towards it asking

“kaun hai”, and on hearing his alarm she rushed there. She

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stated that when she reached, Pritam Gosai was already present

and thereafter her nephews came. She further stated that apart

from Pritam, there were about 10 other persons present but due

to night she could not recognise them. She stated that the entire

occurrence took place within about a minute and the assailant

fled away, and that he had a katta tucked at his waist. She

further stated that her nephews did not catch hold of the accused

or his weapon. She further stated that after the occurrence,

villagers and Pritam remained there for about half an hour and

that Pritam told her that the assailant was Fauzdar Yadav. She

stated that her husband had 3-4 bleeding injuries on his head.

She further stated that in the morning at about 7:00-8:00 A.M.,

her husband was taken to the doctor at Chainpur on a cot by

four persons and she accompanied him, and the doctor declared

his condition serious and referred him to Banaras, where he was

admitted in B.H.U. Hospital, though she does not know the

name of the doctor who treated him. She denied any suggestion

of false implication.

13. P.W.4 and P.W.5, Kameshwar Singh and Anil

Kumar Singh respectively are formal witnesses who have signed

and proved the panchnama which has been marked as Ext.1.

14. P.W.6, Dr. Indrajit Prakash, who is M.O. at

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Primary Health Centre, Chainpur, has deposed that on

13.12.2002 at about 09:10 A.M., he examined Dharamshila

Devi and found the injury on her person as “A swelling over

right perital region of the head 1”x 1”. The injury was opined as

simple in nature caused by hard blunt substance (Injury report

marked as Ext.2). P.W.6 further deposed that on the same day he

also examined Jung Bahadur Singh at about 09:00 A.M. and

found following injuries on his person (Injury report marked as

Ext.2/1):

“(I) A lacerated wound on the upper paret of

the head 1.5’’ x 0.2’’ skin deep.

(II) Three abrasions on the dorsal surface of

the right head 0.3’’x 0.2’’.

(III) An abrasion on the left knee laterally

0.5’’ x 0.4’’.

Patient was unconscious and so referred to

PMCH Patna or Sir Sundarlal Hospital,

BHU, Varanasi for investigation, treatment

and opinion.”

In his cross-examination, P.W.6 stated that on

police requisition he examined the injured persons. He stated

that on the police requisition it was mentioned that the injured

Dharamshila had stomach ache and red abrasion on her back,

which after examination he did not find such injury on her body.

Moreover, he stated that the injuries of Jung Bahadur Singh

were possible due to hard and blunt substance. He stated that he

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found injury only on the head of Jung Bahadur Singh and after

providing medical treatment he referred him to Higher Hospital.

15. P.W.7, Deo Kumar Singh is a formal witness

who has proved Ext.3.

16. P.W.8, Imanwel Tirki, who is Investigating

Officer (I.O.) of this case, has deposed that he recorded the

fardbeyan of Dharamshila Devi at Primary Health Centre,

Chainpur, and he identified the fardbeyan to be in his

handwriting and bearing his signature, which has been marked

as Exhibit-6. P.W.8 further deposed that after recording the

fardbeyan, he got examined the injuries of Dharamshila Devi

and her husband Jung Bahadur Singh and issued forwarding

letter of the injury reports, which are in his handwriting and bear

his signature, and identified the same, which have been marked

as Exhibits 2/2 and 2/3 respectively. He further deposed that

thereafter the investigation was entrusted to him, during which

he again recorded the statement of the informant and inspected

the place of occurrence. He deposed that he recorded the

statements of witnesses, namely Pritam Gosai, Vansh Prakash

Singh, Manoj Kumar and Sachchidanand Singh, who supported

the occurrence. He also deposed that during the course of

investigation, injured Jung Bahadur Singh died on 20.12.2002 at

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about 8:30 P.M. in B.H.U., Varanasi, whereupon he submitted

application for conversion of the case from Section 307 to

Section 302 of the Indian Penal Code and obtained the inquest

report and postmortem report.

In his cross-examination, the witness stated that

when he recorded the fardbeyan at the Primary Health Centre,

Dharamshila Devi as well as Jung Bahadur Singh were present

and the latter was in unconscious condition. He stated that the

occurrence took place on 12.12.2002 at about 9:00 P.M. and the

fardbeyan was recorded on 13.12.2002 at about 10:15 A.M., i.e.,

after about 12 hours, and that in the meantime no such

information had reached the police station. He further stated that

though both injured had been given dressing, he did not remove

the bandage to examine the injuries, and Dharamshila Devi had

only ointment applied. He stated that the doctor did not refer the

injured to Banaras in his presence and he did not make any

recommendation for such referral, nor has he recorded in the

case diary as to when the injured was referred to Varanasi. He

further stated that he did not go to Banaras and came to know

about the death of Jung Bahadur Singh after about 12 days, on

04.01.2003, when the informant herself came to the police

station and informed him. He stated that the postmortem report

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was received through the Superintendent of Police by post, but

the same has not been entered in the case diary, and he did not

verify the postmortem report, though he denied the suggestion

that it was not verified because it was forged. He further stated

that he did not ascertain the name of the doctor who treated the

deceased at B.H.U., nor did he collect any admission or

treatment papers. He further stated that he inspected the place of

occurrence on 13.12.2002 in presence of the informant, and at

that time he seized blood-stained soil from the place of

occurrence and prepared a seizure list, though the same has not

been attached, and the seized soil was not sent for chemical

examination and is lying in the malkhana. He further stated that

though the occurrence took place at night and the source of light

was a lantern, he did not seize the said lantern. He further stated

that he did not seize the cot, mattress or quilt from the dalan,

stating that there was no blood on them as per the informant. He

further stated that he did not investigate whether the accused

had broken open the door or had entered otherwise, as no

witness had stated so. He further stated that he made inquiry

regarding the criminal antecedents of the accused but did not

find any such history.

17. P.W.9, Dr. J.P. Tripathi is the doctor who

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conducted postmortem of the deceased Jung Bahadur Singh. He

has deposed that death of Jung Bahadur Singh occurred due to

coma resulting from a grievous injury on the head. He stated

that the postmortem report is in his handwriting and bears his

signature, which he identifies. He further deposed that the

injuries found on the body of the deceased were sufficient in the

ordinary course of nature to cause death.

In his cross-examination, P.W.9 stated that there

was one injury on the head of the deceased, apart from that,

there was one injury on the left knee and a bedsore on the back

below the waist. He stated that the injury on the left knee was a

superficial abrasion caused by friction and not by lathi blow. He

further stated that the head injury was so severe that, in absence

of proper treatment, it could cause death. He explained that

upon opening the skull, there was subdural and extradural

hematoma, and such hematoma causes pressure on the brain. He

denied the suggestion that the report given by him is incorrect or

not in accordance with medical science.

18. P.W.10, Rajendra Singh is a formal witness who

has deposed that the signature appearing on the formal First

Information Report is that of Sri Surendra Prasad Singh, the

then Sub-Inspector of Chainpur Police Station, which he

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identifies. The said document has been marked as an exhibit.

In cross-examination, he stated that the said

document was not signed in his presence and that he has no

personal knowledge regarding the contents of the case.

19. After closure of the prosecution evidence, the

statement of the appellant was recorded under Section 313 of

the Code of Criminal Procedure, 1973 on 11.12.2006 wherein he

denied the allegations and pleaded innocence. However, in his

defence, the appellant has not adduced any oral or documentary

evidence.

20. Considering the facts and circumstances of the

case, upon perusal of the materials available on record and after

a detailed appreciation of the oral and medical evidence on

record, came to a categorical finding that the prosecution had

failed to establish the ingredients necessary to constitute

offences under Sections 302, 307 and 304 of the IPC. The

learned Trial Court observed that neither the intention nor the

knowledge requisite for attracting the offence of murder or

culpable homicide could be safely inferred from the materials

available on record. It was further held that even the charge

under Section 326 of the IPC was not made out, as the nature of

injuries and the manner of assault did not satisfy the statutory

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requirements thereof. However, the learned Trial Court found

that the evidence of the eye-witnesses, to the extent it proved

assault by the accused upon the deceased, was reliable and stood

corroborated by the medical evidence insofar as it established

that the deceased had sustained grievous injury on the head. On

such reasoning, the learned Trial Court concluded that the act of

the accused squarely fell within the ambit of Section 325 of the

IPC and accordingly recorded conviction thereunder. The

learned Trial Court further held that the prosecution had

succeeded in proving that the accused had voluntarily caused

simple hurt to the informant (P.W.3), thereby attracting Section

323 of the IPC, and that his act of entering the house of the

informant with preparation for assault constituted the offence

under Section 452 of the IPC. Moreover, on the point of

sentence, the learned Trial Court taking into account the nature

of the offence proved, imposed rigorous imprisonment for seven

years along with fine of Rs.10,000/- under Section 325 of the

IPC, with a default stipulation, and awarded similar sentence

under Section 452 of IPC, while directing all sentences to run

concurrently and awarding no separate sentence under Section

323 of the IPC.

21. Being aggrieved by the impugned order of

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conviction and sentence, the opposite party no.2/appellant filed

appeal before this Court bearing Criminal Appeal (SJ) No.552

of 2008 and the petitioner filed the present revision petition.

22. Having noticed the findings recorded by the

learned Trial Court, this Court proceeds to consider the

submissions advanced on behalf of the parties in the connected

revision as well as the appeal.

23. Learned counsel for the petitioner in revision

submitted that the impugned order suffers from manifest

illegality inasmuch as the learned Trial Court has failed to

properly appreciate the consistent and cogent ocular evidence of

the eye-witnesses, namely P.W.1 and P.W.3, the latter being an

injured witness. It is submitted that the presence of these

witnesses at the place of occurrence is natural and fully

established, and their testimonies clearly prove that the accused

entered the house armed with a khanti and inflicted a forceful

blow on the head of the deceased, which ultimately resulted in

his death. It is submitted that the evidence of P.W.1, a natural

witness and son of the deceased, fully corroborates the version

of the informant (P.W.3), and both have consistently supported

the prosecution case with regard to the manner of assault.

Learned counsel further submitted that their ocular version

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stands further corroborated by the medical evidence of P.W.6

and P.W.9, particularly the postmortem report (Ext.3), which

establishes fracture of the skull and opines the cause of death to

be head injury. It is thus submitted that once the assault by the

accused and the resulting fatal injury are proved beyond doubt,

there was no justification for the learned Trial Court to dilute the

offence to one under Section 325 of the IPC, especially when

the injury was inflicted on a vital part of the body with a

dangerous weapon inside the house of the deceased.

24. Learned counsel for the petitioner further

submitted that minor inconsistencies or embellishments in the

testimonies of certain witnesses, particularly with respect to

presence of other villagers, do not go to the root of the

prosecution case and ought to have been ignored. In this regard,

learned counsel has placed reliance upon the judgment of the

Hon’ble Supreme Court in Bhaskarrao and Ors. v. State of

Maharashtra, reported in (2018) 6 SCC 591, following

Tahsildar Singh and Anr. v. State of Uttar Pradesh, reported in

1959 SCC OnLine SC 17; AIR 1959 SC 1012, wherein it has

been held that the Court must separate truth from

embellishments. Further reliance is placed on Balakrishnan

and Ors. v. State of Tamil Nadu, reported in (2018) 14 SCC 55;

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AIR 2018 SC 1153, wherein it has been held that minor

contradictions do not affect the core of prosecution case.

Learned counsel also relied upon the decision of the Hon’ble

Apex Court in Stalin v. State (Represented by Inspector of

Police), reported in (2020) 9 SCC 524 to submit that even a

single blow on a vital part like the head, if inflicted with

sufficient force and intention, can attract Section 302 of the IPC.

Additionally, reliance has been placed upon the judgment in

Kunhimuhammed @ Kunheethu v. State of Kerala, reported in

2024 SCC OnLine SC 3618, wherein the Hon’ble Apex Court

has held that where ocular evidence of reliable eye-witnesses

stands corroborated by medical evidence, the same is sufficient

to sustain conviction for murder. On the strength of these

submissions, it is submitted that the accused be convicted under

Section 302 of the IPC.

25. Learned counsel for the opposite party

no.2/appellant submitted that the impugned judgment, even to

the extent of conviction under Sections 325, 452 and 323 of the

IPC, is unsustainable in law as the prosecution has failed to

establish its case beyond reasonable doubt. It is submitted that

the entire prosecution story suffers from material inconsistencies

and contradictions, particularly with regard to the identity of the

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accused and presence of alleged eye-witnesses at the place of

occurrence. It is further submitted that as per the earliest version

in the fardbeyan of P.W.3, only she, her husband and her minor

son (P.W.1) were present at the time of occurrence, however,

during trial, attempts have been made to introduce additional

witnesses as eye-witnesses, which creates serious doubt

regarding the veracity of the prosecution case. Learned counsel

further submitted that even P.W.2, who is projected as an eye-

witness, has not actually witnessed the occurrence and reached

the place only after the alleged assault. It is further submitted

that important independent witnesses named in the fardbeyan,

namely Munna Singh, Manoj Singh and Sachidanand Singh,

have not been examined by the prosecution without any

explanation, which gives rise to adverse inference against the

prosecution case.

26. Learned counsel for the opposite party

no.2/appellant further submitted that the medical evidence does

not conclusively establish that the death of the deceased was

solely attributable to the alleged assault by the appellant,

particularly in view of the delay in taking the injured to the

hospital and intervening circumstances during treatment. The

defence of the appellant has consistently been one of total denial

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and false implication due to prior enmity, and the prosecution

has failed to establish any clear motive for the alleged

occurrence. It is submitted that the learned Trial Court itself has

disbelieved the prosecution case insofar as the charge under

Section 302 of the IPC is concerned, thereby indicating serious

doubt in the prosecution version. However, despite such doubt,

the learned Trial Court has erred in convicting the appellant

under lesser offences on the same set of evidence, which is

legally impermissible. It is thus submitted that in view of the

contradictions, non-examination of material witnesses, doubtful

nature of evidence and failure of the prosecution to prove the

case beyond reasonable doubt, the appellant is entitled to benefit

of doubt and consequent acquittal from all the charges.

27. Learned APP for the State supported the

impugned order of conviction and sentence and submitted that

the learned Trial Court has rightly appreciated the evidence on

record and recorded conviction of the appellant under Sections

325, 452 and 323 of the IPC. It is submitted that the occurrence

and the role of the appellant stand duly proved from the

consistent testimonies of P.W.1 and P.W.3, which are

corroborated by the medical evidence. It is further submitted

that minor inconsistencies or non-examination of some

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witnesses do not affect the core of the prosecution case,

particularly when the injured witness has supported the case.

Learned APP, therefore, submitted that the conviction and

sentence require no interference and the impugned judgment

deserves to be affirmed.

28. In view of the rival submissions and materials

available on record, the sole issue that arises for consideration

before this Court is “whether, on the basis of the evidence

adduced by the prosecution, the learned Trial Court was

justified in convicting the accused under Sections 325, 452 and

323 of the IPC, or whether the case is made out for conviction

under Section 302 of the IPC as contended by the petitioner, or

for acquittal as claimed by the opposite party no.2/appellant.”

29. It is well settled that this Court has power to re-

appreciate and reconsider the evidence in an appeal. The act of

an accused can be proved by direct evidences or circumstantial

evidence. The present case, in the facts and circumstances rests

upon direct evidence. In the present case, P.W.1, P.W.2 and

P.W.3, are projected by the prosecution as eye-witnesses to the

said occurrence.

30. It is noteworthy that the earliest version of the

prosecution, as reflected in the fardbeyan of P.W.3, clearly

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indicates that at the time of occurrence only she, her husband

(deceased) and her minor son (P.W.1) were present. However,

during trial, both P.W.1 and P.W.3 have introduced additional

persons, namely Pritam (P.W.2), Sachida and Manoj, as eye-

witnesses to the occurrence. This material improvement creates

serious doubt regarding the actual manner of occurrence.

Further, P.W.1, being a minor child witness at the time, has

made inconsistent statements regarding arrival of villagers and

sequence of events, thereby affecting the reliability of his

testimony. The conduct of the witnesses also appears unnatural,

particularly inasmuch as no effective steps were taken to secure

immediate medical aid.

31. More importantly, the testimony of P.W.3

suffers from a serious infirmity on the aspect of identification of

the accused. While in her examination-in-chief she claimed to

have identified the accused in lantern light, in her cross-

examination she has admitted that she was a pardanashin

woman and Fauzdar Yadav had never visited her house earlier,

and further admitted in para 42 of her cross-examination that it

was P.W.2, Pritam Gosai, who disclosed to her that the assailant

was Fauzdar Yadav which shows that she herself had not

recognized the assailant. In para 25 of her cross-examination she

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has also admitted that during the course of occurrence, no co-

villager was present there, and on the contrary in para 32 she

has stated that when she went to her husband, P.W.2, Pritam

Gosai, was already there. Moreover, P.W.2, Pritam Gosai has

stated in para 11 of his cross-examination, he has stated that at

the time he reached the doors of the deceased, apart from the

assailant, he saw wife and two relatives of the deceased Jung

Bahadur Singh. P.W.3 stated that she heard the knocking sound

from the dalan and her husband went there, and on hearing

alarm she rushed there. The time she reached dalan, Pritam

Gosai (P.W.2) was already present and thereafter her nephew

came there. These admissions strike at the root of the

prosecution case, as the identity of the accused becomes

doubtful. Coupled with this, the non-examination of material

independent witnesses, namely Manoj Singh and Sachidanand

Singh, without furnishing any proper reason, further weakens

the prosecution case. In view of such contradictions,

improvements and doubtful identification, this Court is of the

considered opinion that the prosecution has failed to prove the

charges against the appellant beyond reasonable doubt, and the

benefit of doubt must necessarily go in favour of the accused.

32. Moreover, in the facts of the present case, the

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conduct attributed to Sachida and Manoj, who are close relatives

of the deceased, stated to have been present at the time of

occurrence, creates serious doubt regarding their actual presence

and the veracity of the prosecution version. Despite the

prosecution case that they arrived at the place of occurrence

during the assault, there is no convincing evidence to show that

they made any genuine effort either to intervene and protect the

deceased or to immediately arrange for medical assistance after

he had sustained grievous injuries and fallen unconscious. Their

alleged inaction and passive conduct, particularly in a situation

where a close family member was being brutally assaulted,

appears wholly unnatural and casts a grave doubt on their

presence at the place of occurrence as eye-witnesses. This

unexplained and unnatural conduct, therefore, weakens the

prosecution case and renders their purported presence highly

doubtful.

33. This Court further finds that the I.O. has failed

to recover the alleged weapon i.e., ‘khanti’ which was alleged to

have used by the appellant to commit the crime, though not fatal

to the prosecution’s case. Also, the soil drenched with blood was

neither produced before the learned Trial Court nor was sent for

lab examination. Moreover, the admitted delay in providing

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medical treatment and the fact that the deceased was taken to

hospital only on the following morning and thereafter treated at

another hospital for several days before his death, create a

reasonable doubt as to whether the death was the direct and

proximate result of the alleged assault. In absence of clear and

cogent evidence establishing an unbroken chain between the

alleged act and the ultimate death, it would be unsafe to hold the

appellant responsible for the same. Thus, the medical evidence,

instead of lending assurance to the prosecution case, leaves

room for doubt, which must enure to the benefit of the accused.

It is also pertinent to note that the FIR was registered with a

delay of around 12 hours from the time of occurrence and I.O.

has admitted that in the meantime no such information had

reached the police station. It is noteworthy that the distance

from the place of occurrence to the nearest police station, where

the F.I.R. was registered is just 5 kilometer, yet it took the

informant around 12 hours from the time of occurrence to

register the said F.I.R.

34. The Hon’ble Supreme Court in Bhaskarrao

and Ors. v. State of Maharashtra (supra) has held as under:

“54. …………It is always the duty of the

Court to separate chaff from the husk and to

dredge the truth from the pandemonium of

statements. It is but natural for human

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beings to state variant statements due to time

gap but if such statements go to defeat the

core of the prosecution then such

contradictions are material and the Court

has to be mindful of such statements [See:

Tahsildar Singh v. State of U.P., AIR 1959

SC 1012 : 1959 Cri LJ 1231] .”

35. In view of the aforesaid discussion, this Court

is of the considered opinion that the prosecution has failed to

bring home the charges against the opposite party no.2/appellant

beyond all reasonable doubts. The findings recorded by the

learned Trial Court, even to the extent of conviction under

Sections 325, 452 and 323 of the IPC, are not sustainable in the

eyes of law, being based on evidence suffering from material

contradictions, doubtful identification and lack of reliable

corroboration. Accordingly, the impugned judgment of

conviction and order of sentence dated 11.06.2008 are hereby

set aside and the appellant is acquitted of all the charges. The

appeal preferred by the appellant is allowed.

36. Resultantly, the criminal revision preferred by

the petitioner seeking conviction of Fauzdar Yadav under

Section 302 of the IPC stands dismissed.

37. The appellant, Fauzdar Yadav, is acquitted for

the charges leveled against him, since, the appellant is already

on bail, he is discharge from the liability of his bail bonds.

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38. The Trial Court Records of the instant revision/

appeal be returned to the Trial Court, forthwith.

39. I.A.(s), if any, stands disposed of.

Ritik/-

(Sunil Dutta Mishra, J)

AFR/NAFR NAFR

CAV DATE 03.04.2026

Uploading Date 28.04.2026

Transmission Date 28.04.2026