IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL APPEAL (DB) No.298 of 1996

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

Against the judgment of conviction, dated 17.07.1996, and the order of

sentence, dated 20.07.1996, passed, by Shri S. M. Haque, 1

st

Additional

Sessions Judge, Madhepura, in Sessions Trial No. 74 of 1989, arising out

of Alamnagar Police Station Case No. 70 of 1988

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1.YOGENDRA MANDAL S/O Bhuneshwar Mandal R/O Vill.- Baraki

Fatoriya, P.S.- Alam Nagar, Dist.- Madhepur

2.Bindeshwari Mandal S/O Devi mandal R/O Vill.- Baraki Fatoriya, P.S.-

Alam Nagar, Dist.- Madhepur (Case against the appellant has been

abated vide Hon’ble Court’s order dated- 29-11-2025)

3.Adhiklal Mandal S/O Langnath Mandal R/O Vill.- Baraki Fatoriya, P.S.-

Alam Nagar, Dist.- Madhepur (Case against the appellant has been

abated vide Hon’ble Court’s order dated- 29-11-2025)

... ... Appellant/s

Versus

The State of Bihar

... ... Respondent/s

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

Appearance :

For the Appellant/s: Mr.Sidhendra Nr. Singh

For the State : Mr. Sujit Kumar Singh

Ms. Surya Nilambari, Advocate, appears as Amicus Curiae

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

CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA

and

HONOURABLE MR. JUSTICE ALOK KUMAR

JUDGMENT AND ORDER

C.A.V.

(Per: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA)

Date : 21-07-2026

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The present appeal has been preferred against the

judgment of conviction, dated 17.07.1996, and the order of

sentence, dated 20.07.1996, passed by the learned Additional

Sessions Judge-I, Madhepura, in Sessions Trial No.74 of 1989,

arising out of Alamnagar Police Station Case No. 70 of 1988,

whereby the sole surviving appellant, Yogendra Mandal, was

convicted for the offence punishable under Sections 302 read with

34 of the Indian Penal Code and was sentenced to undergo

rigorous imprisonment for life.

2. The prosecution case, as unfolded in the fardbayan of

the informant, Ganesh Mandal (PW 9), is that in the night

intervening 12

th

and 13

th

July, 1988, at about 8 PM., he was serving

food to the members who had come to attend the marriage

ceremony of his niece. At that time, his co-villagers, Bindeshwari

Mandal (died during the pendency of this appeal), Yogendra

Mandal (the appellant) and Adhik Lal Mandal (died during the

pendency of this appeal),against whom a murder case had been

pending since 1986, came to his doorstep and owing to previous

enmity, Bindeshwari Mandal called the son of the informant,

namely, Rajendra Mandal, whereupon Rajendra accompanied them

towards west of the house.

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3. It has further been alleged by the informant that after

some time, he heard a noise from that direction and on hearing the

same, he, along with his other sons, Tej Narayan Mandal and

Bachneshwar Mandal, co-villagers Valmiki Mandal, Lucho

Mandal and others, rushed towards the western side of the house

and in the torch light, saw Bindeshwari Mandal, Yogendra Mandal

and Adhik Lal Mandal running towards the south-west. The

informant saw that Yogendra Mandal was having a .303 rifle, but

he could not see what other accused persons were carrying.

4. The informant further stated that he found his son,

Rajendra Mandal, dead lying supine in his kheri field and blood

was oozing out of the left side of his chest. He also stated that at

the time of the occurrence, it was drizzling and the night was very

dark and due to fear of the accused persons, he did not follow

them. He further stated that the villagers had also witnessed the

occurrence.

5. The informant has further stated that the accused

persons had called his son, took him behind the house and shot

him dead.

6. On the basis of the aforesaid fardbayan, Alamnagar

Police Station Case No. 70 of 1988, dated 13.07.1988, was

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registered against the accused persons for the offences punishable

under Section 302/364/120-B of the Indian Penal Code.

7. Upon completion of the investigation, the police

submitted charge-sheet no. 56 of 1988, dated 30.09.1988, against

the accused persons. The learned Magistrate took cognizance for

the offences punishable U/s 364/302/120-B/34 of Indian penal

code, against the accused person on 29.11.1988 and thereafter, the

case was committed to the Court of Sessions on 12.05.1989.

8. On 17.08.1989, charges were framed Under Section

302 read with Section34 of the Indian Penal Code against the

accused persons, which were read over and explained to them in

Hindi, to which they pleaded not guilty and claimed to be tried.

9. The prosecution, in order to substantiate its case, has

examined thirteen witnesses and also exhibited some documents

on its behalf. List of prosecution witnesses and exhibits are being

mentioned hereunder in tabular form:-

List of Prosecution Witnesses :

Prosecution

witness no.

Name of witness Description

1. Babulal Mandal Uncle of deceased

2. Tej Narayan MandalBrother of deceased

3. Lucho Mandal Villager

4. Suresh Mandal

Son-in-law of

informant

5. Dr. J.B. Singh Doctor

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6. Bhagwan Mandal Tendered witness

7. Deonarayan Yadav Formal witness

8. Bachneshwar Mandal Brother

9. Ganesh Mandal Informant

10. Lalan Kumar Jha Formal witness

11. Kusmi Devi Wife of Informant

12. Umesh Mandal Seizure list witness

13. Navin Prasad Yadav Formal witness

List of Exhibits on behalf of the prosecution :

Exhibit No.Description of the ExhibitDate/attested

1

Post Mortem report of the

deceased ( Rajendra Mandal)

27.07.1990

2 F.I.R 02.09.1991

3 Inquest Report 07.09.1993

4 Seizure list 06.06.1994

5 Charge sheet 06.04.1995

10. After closure of the prosecution evidence, the

statement of the appellants were recorded under Section 313 of the

Code of Criminal Procedure on 01.07.1996, to which they denied

and claimed to be tried.

11. The defence has not chosen to examine any witness in

support of its case. No oral evidence has been adduced on behalf

of the accused to substantiate the defence plea or to rebut the

evidence led by the prosecution. Likewise, no documentary

evidence has been brought on record by the defence in support of

its contentions.

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12. Learned Counsel for the sole surviving appellant has,

at the outset, submitted that the judgment of conviction is against

the weight of evidence and has been rendered on mere

presumption of guilt. It is contended that the prosecution has failed

to prove its case beyond reasonable doubt, in as much as the

testimonies of the prosecution witnesses suffer from material

contradictions and inconsistencies.

13. Learned Counsel for the appellant further submitted

that the evidence of the prosecution witnesses, when appreciated

in its proper perspective, does not inspire confidence and is wholly

insufficient to sustain the conviction.

14. It was contended that PW 1, who is the own brother

of the informant, is an admittedly interested witness. His evidence

is confined only to the fact that the accused persons allegedly

called the deceased from the marriage ceremony and took him

towards the western side of the house.

15. Learned Counsel further submitted that PW 2, has

made substantial improvement during the course of trial. While the

First Information Report does not disclose that anyone had

actually witnessed the firing, PW 2, for the first time before the

Court, claimed to have seen Yogendra Mandal firing at the

deceased. His testimony also suffers from material inconsistencies

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on vital aspects of the prosecution case and, therefore, cannot

safely be relied upon.

16. It was further submitted that PW 4, being the son-in-

law (damaad) of the informant, is also an interested witness. More

importantly, he admittedly reached the place of occurrence only

after hearing the sound of firing. His knowledge regarding the

identity of the assailants is entirely derived from what was

allegedly narrated to him by others. His evidence, therefore, is

purely hearsay and has no substantive evidentiary value insofar as

the actual occurrence is concerned.

17. Learned counsel also pointed out that PW 6 was

merely tendered for cross-examination and has not furnished any

substantive evidence in support of the prosecution case. Likewise,

PW 7 is only a formal witness and his evidence does not advance

the prosecution case regarding the identity or involvement of the

appellants. PW 11, who was expected to support the prosecution,

has turned hostile and has not implicated the appellants in the

commission of the offence.

18. It was next submitted that the Investigating Officer

could not be examined during the trial as he had died before his

evidence could be recorded.

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19. Learned Counsel further submitted that the

investigation itself suffers from serious lapses, which strike at the

root of the prosecution case. Although the prosecution alleges that

the appellants were identified in the light of a torch, no torch was

ever seized or produced during the investigation. Likewise, no

blood-stained earth or blood sample was collected from the

alleged place of occurrence for forensic examination. Even the

blood-stained clothes (bandi) worn by the deceased at the time of

the occurrence were not seized by the Investigating Officer. These

omissions assume considerable significance because the

prosecution case is founded upon circumstantial evidence and

identification in darkness. Such defective investigation creates a

serious dent in the prosecution story and substantially weakens the

evidentiary value of the prosecution case.

20. Learned Amicus Curiae submitted that the entire

prosecution case is founded exclusively on circumstantial

evidence and that the very circumstances sought to be relied upon

by the prosecution have not been proved beyond reasonable doubt.

It was contended that in a case resting solely on circumstantial

evidence, every link in the chain must be firmly established and

the chain so proved must be complete so as to exclude every

hypothesis consistent with the innocence of the accused.

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According to the learned Amicus Curiae, the prosecution has

failed to satisfy this settled legal requirement.

21. It was further submitted that the prosecution

principally relies upon the circumstances of "last seen together"

and the alleged identification of the appellants while fleeing from

the place of occurrence. However, neither of these circumstances

inspires confidence. Learned counsel pointed out that the

informant (PW 9) himself has rendered the prosecution version

doubtful by raising uncertainty regarding the source and manner of

identification. The occurrence admittedly took place on a dark and

drizzling night, yet the prosecution has failed to establish the

source, intensity or reliability of the alleged torchlight by which

the appellants were said to have been identified. No torch was

seized during investigation or produced before the Court.

Consequently, the very foundation of the prosecution's case

regarding identification remains unsubstantiated.

22. PW 2 has introduced material improvements during

trial, whereas PW 3 has failed to corroborate the prosecution on

the crucial aspect of seeing the appellants fleeing from the place of

occurrence. These inconsistencies strike at the very root of the

prosecution case and render the evidence wholly unreliable.

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23. It was next submitted that despite the admitted

presence of a large number of villagers and marriage guests at the

place of occurrence, the prosecution has not examined a single

independent witness. All the material witnesses examined by the

prosecution are either close relatives of the deceased or otherwise

closely connected with the informant. In a case admittedly arising

out of previous enmity between the parties, the failure of the

prosecution to examine any independent witness assumes

considerable significance and casts a serious doubt on the fairness

and credibility of the prosecution case. Nevertheless, it was

submitted that the absence of the Investigating Officer has

undeniably prejudiced the defence in proving material omissions

and contradictions in the statements of the prosecution witnesses.

At the same time, learned Amicus Curiae submitted that the Court

is not rendered powerless merely because the Investigating Officer

could not be examined. Referring to Section 165 of the Indian

Evidence Act, 1872 (corresponding to Section 168 of the

Bharatiya Sakshya Adhiniyam, 2023), it was contended that the

Court possesses wide powers to put questions to any witness at

any stage of the proceedings in order to discover or obtain proper

proof of relevant facts. The Court, therefore, is duty-bound to

independently scrutinize the evidence on record and satisfy itself

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that the prosecution has discharged its burden of proving the guilt

of the appellants beyond reasonable doubt.

24. Learned Amicus Curiae lastly submitted that when

the prosecution case is examined as a whole, the cumulative effect

of the material improvements, inconsistencies in the testimony of

the witnesses, absence of independent corroboration, doubtful

identification in adverse lighting conditions, defective

investigation and the incomplete chain of circumstances creates

more than a reasonable doubt regarding the involvement of the

appellants. It was, therefore, urged that the appellants are entitled

to the benefit of doubt and that the impugned judgment of

conviction and the consequent order of sentence deserve to be set

aside.

25. On the other hand, learned Additional Public

Prosecutor, appearing on behalf of the State, while opposing the

appeal, submitted that the learned Additional Sessions Judge-I,

Madhepura, after considering the evidence on record, has rightly

convicted the appellant. The offences alleged against the appellant

is heinous in nature and the prosecution witnesses examined

during trial have fully supported the prosecution case.

26. Learned Additional Public Prosecutor, therefore,

submitted that the impugned judgment of conviction do not suffer

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from any legal infirmity and/or irregularity, warranting

interference of this Court. The appeal, being devoid of merit, is fit

to be dismissed.

27. I have heard Mr. Sidhendra Narayan Singh, learned

Counsel appearing on behalf of the appellant and Mr. Sujit Kumar

Singh, learned Additional Public Prosecutor appearing on behalf

of the State. Also heard Ms. Surya Nilambari, learned Counsel,

appearing in this appeal as Amicus Curiae. I have also perused the

materials available on records, including the Lower Court Record.

28. While considering the present appeal, I would like to

re-appreciate the other ocular witnesses adduced on behalf of the

prosecution.

29. It may be noted that the conviction of the appellant

has been based upon the circumstantial evidence. Out of the 13

witnesses examined by the prosecution, PW 1 and PW 2 (brothers

of the informant), PW 8 (Bachneshwar Mandal) and PW 9

(informant of this case) are the ones, who have supported the case

of the prosecution by implicating the accused aforementioned in

the alleged assault on, and killing of, Rajendra Mandal.

30. As far as PW 11 (Kusumi Devi) is concerned, she was

declared hostile and nothing could be, admittedly, elicited from

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her cross-examination by the prosecution, which could be said to

have supported the case of the prosecution.

31. As far as PW 3 (Lucho Mandal) and PW 4 (Suresh

Mandal) are concerned, their evidence were, admittedly, nothing,

but hearsay and have to be, therefore, kept excluded from the

purview of this Court’s consideration.

32. As regards PW 6 (Bhagwan Mandal), suffice it to

point out that he was tendered as a witness and no substantive

evidence has been elicited from him by the prosecution to support

the charge brought against the appellant.

33. So far as PW 7 (Deo Narayan Yadav), PW 10 (Lalan

Kumar Jha), PW 12 (Umesh Mandal) and PW 13 (Raj Kishore

Prasad Yadav) are concerned, they are the formal witnesses. PW 7

has proved that the First Information Report has been written by

the then Station House Officer Sri Mahavir Thakur, which hs been

marked as Exhibit 2. PW 10 has proved that the inquest report is in

the handwriting of Daroga Mahavir Thakur and bears his

signature, which has been marked as Exhibit 3. PW 12 has proved

the seizure list, which bears his signature and has been marked as

Exhibit 4. The Investigating Officer of this case had died during

the pendency of this appeal and, therefore, PW 12, Munshi, has

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proved the charge sheet written and signed by the Investigating

Officer, Mahavir Thakur and has been marked as Exhibit 5.

34. Bearing in mind the above aspects of the

prosecution’s case, I come to the evidence of PW 5 (Dr. J. B.

Singh), who had, admittedly, conducted post mortem examination

on the dead of Rajendra Mandal on 14.07.1988, at 10:30 AM.

According to this witness’s evidence, he examined the dead body

of the deceased, Rajendra Mandal, with rigor mortis present and

found following ante mortem injuries:

“One circular hole of 1 ½” in diameter

in second space in left anterior auxiliary fold

directing towards the chest cavity with charred

margin.

On opening the chest cavity, 3

rd

rib

fractured, left and right chest cavity were full of

blood, penetrating through and through left chest,

heart and right lung. The abdominal viscera were

pale.”

35. The doctor (PW 5) had found a conical bullet in the

right chest cavity, which was removed and handed it over to

Havildar Md. Aayub in sealed condition.

36. The doctor (PW 5) has opined that the hole present in

the left lung, heart and right lung were caused by bullet injury. He

further opined that the cause of death was shock and hemorrhage

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due to bullet injury and the injury was sufficient to cause death in

ordinary course of nature.

37. In the cross examination, the doctor (PW 5) has stated

that he had not mentioned in his report as to whether the blood

was clotted or not and he further stated that one may live for 2 to 4

minutes after receiving such injury as he had found on the

deceased.

38. Nothing, in particular, was elicited by the defence to

show that the findings of the doctor and/or his opinion, with regard

to the cause of death was incorrect. This apart, I, too, do not find

anything inherently incorrect or improbable in the evidence given

by PW 5.

39. It can, therefore, be safely included, and I do

conclude, that Rajendra Mandal died as a result of having

sustained the injury as has been mentioned by the doctor (PW 5)

and the shock and hemorrhage, which resulted from the ante

mortem injury aforementioned, became the cause of his death and

that the injury, which had been inflicted on, and sustained by, the

said deceased, was sufficient to cause death of a person in the

ordinary course of nature, from recovery of a conical bullet,

admittedly, the weapon of offence being a fire arm.

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40. What also clearly follows from the discussion of the

medical evidence on record is that the death of the said deceased

was homicidal in nature. Whether the appellant, along with others

were the ones, who had caused the death, of Rajendra Mandal,

therefore, falls for consideration.

41. As already indicated above, in order to support their

case, prosecution has relied upon the evidence of PW 1, PW 2, PW

8 and PW 9.

42. Now, coming to the evidence of PW 1, Babulal

Mandal, who has deposed that at around 1 AM, when a barati was

having dinner at his house, Bindeshwari Mandal, Yogi Mandal and

Adhik Lal Mandal came to his house, called Rajendra Mandal

outside and took him with them towards the western side of the

house. Shortly thereafter, he heard the sound of a gunshot from

that direction. On reaching the spot, he found Rajendra Mandal

lying dead in a kheri field situated to the west of his house, at a

distance of about ten poles. He further deposed that blood was

oozing from the left side of the deceased's chest.

43. In his cross-examination, this witness (PW 1) has

deposed that Ganesh Mandal (PW 9) is his brother. In a murder

case of Naresh, the brother of this witness, Ganesh, is an accused

and the accused persons of this case, namely, Yogi Mandal, Adhik

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Lal Mandal and son of Bindeshwari Mandal, are prosecution

witnesses in the said case. This witness has further deposed that

the murder of Naresh Mandal had taken place prior to the present

occurrence and he himself is an accused in the said murder case,

which was still pending. This witness (PW 1) has further deposed

that the accused persons, along with Chandrashekhar Mandal,

Mahadev Mandal, Vasudev Mandal, Kishan Lal Mandal and

Munishwar Mandal are gotias and they had not come in the

marriage feast. At the time, when the baarati party were taking

dinner, four or five persons from the locality were present there.

The baraati were dining at the door and he, along with other local

people, was serving them. This witness had further deposed that

he, not only saw the accused persons calling Rajendra, but had

heard also. After the murder of Naresh Mandal, the accused had

come to his house for the first time in the night of the occurrence.

According to him, his house and the house of Ganesh Mandal have

two courtyards.

44. The witness (PW 1) had denied the suggestion of the

defence that the accused persons were wholly innocent and had

been falsely implicated on account of prior enmity. He also denied

the suggestion that no such occurrence had taken place at the

hands of the accused persons.

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45. PW 2, Tej Narayan Mandal, in his examination-in-

chief, has deposed that at 1 AM, on a Tuesday, while he was

serving food to the baraati guests at the door of his house during

the marriage ceremony of his cousin sister, at that time,

Bindeshwari Mandal, Adhik Lal Mandal and Yogendra Mandal

came there and Bindeshwari Mandal called his brother, Rajendra

Mandal, saying that he had some work with him and, thereafter, all

the three accused took Rajendra Mandal towards the western side

of the house.

46. This witness (PW 2) has deposed that, after a short

while, when he heard the sound of a pistol shot from the western

direction, he immediately proceeded towards the place of

occurrence and in the torch light flashed by his father, he saw

Bindeshwari Mandal, Adhik Lal Mandal and Jogi Mandal running

towards the south-west. He further deposed that Rajendra Mandal

was lying in his own kheri field, situated about 50 yards to the

west of the house. Rajendra had sustained a gunshot injury on the

left side of his chest, blood was oozing from that wound and he

was already dead.

47. This witness (PW 2) has further deposed that Jogi

Mandal was carrying a .303 rifle, although he could not notice

what, if anything, the other two accused were carrying. This

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witness also deposed that a criminal case was already pending

between the parties, though talks for reconciliation were in

progress. He identified Bindeshwari Mandal, who was present in

Court, and claimed to identify the remaining accused on seeing

them.

48. In the cross-examination, this witness (PW 2) has

deposed that the accused, namely, Bindeshwari Mandal, Yogi

Mandal and Adhik Lal Mandal, had been invited to the wedding of

his niece and they came at that time. He admitted that before the

present incident, a murder case relating to the death of Naresh

Mandal was pending between his family and the accused persons

and that he himself was an accused in the said case. He further

deposed that about two and a half months prior to the present

occurrence, he had resumed meeting with the accused persons, as

talks for reconciliation had commenced between the parties.

49. This witness (PW 2) has further deposed that when he

was serving food to the wedding guests, apart from his family

members, Valmiki Mandal, Lucho Mandal, Brahmi Mandal and

Suresh Mandal were also present. He further stated that when the

three accused arrived, the aforesaid persons were present at the

door of the house, but did not stay at the door, called Rajendra

Mandal and took him away.

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50. This witness (PW 2) has further deposed that he had

seen Yogi Mandal firing at Rajendra Mandal and as soon as the

torchlight was flashed, all the three accused fled from the place of

occurrence. He deposed that he had told the Investigating Officer

that on hearing the sound of the gunshot, he rushed towards the

place of occurrence and in the light of torch, he saw the firing.

This witness, after moving about 25 cubits from the entrance of his

house, had witnessed the shot being fired. As soon as the

torchlight fell upon the accused persons, they fled from the spot.

He further deposed that he saw Rajendra Mandal lying at a

distance of about one cubit from the place where the shot was fired

and had also seen him fall immediately after sustaining the

gunshot.

51. This witness (PW 2) has further deposed that on

hearing the gunshot, he raised an alarm, but no villager, apart from

the witnesses, came to the place of occurrence at that time and the

villagers assembled in the following morning only. He further

deposed that Rajendra Mandal was wearing a bandi (half-coat),

which had a hole corresponding to the gunshot injury. He further

deposed that the dead body was lying on the pathway adjacent to

the kheri field and blood had also spilled there. He further deposed

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that the Investigating Officer arrived in the morning and the dead

body was thereafter taken to the police station.

52. This witness (PW 2) further deposed that he had not

stated before the Investigating Officer that talks for reconciliation

were going on with the accused persons and he had not stated

before the Investigating Officer that he had seen Yogi Mandal

firing the shot in the light of the torch. Finally, this witness had

denied the suggestion of the defence that being the brother of the

deceased and owing to previous enmity, he had falsely implicated

the accused persons in the case and asserted that the accused had,

in fact, committed the offence.

53. PW 8, Bachneswar Mandal, in his examination-in-

chief, has deposed that at the relevant time, he was present in his

locality, Badki Fatoria, and was attending a wedding ceremony as

his cousin was getting married that night, in which some members

of the village community had gathered at his house and the

wedding guests were being served food.

54. This witness (PW 8) has deposed that he heard the

sound of gunshots from behind his house and on hearing the same,

he went towards that direction and saw three or four persons

running away in the light of the torch flashed by his father.

Thereafter, he proceeded towards the adjoining kheri field and

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found his cousin, Rajendra Mandal, lying supine and dead. He

deposed that he noticed a gunshot injury on the chest of the

deceased and blood was oozing out the wound. During his

examination, the attention of the witness was drawn by the

prosecution towards his previous statement, which he denied.

55. In the cross-examination by the prosecution, this

witness (PW 8) has denied the suggestion that he had colluded

with the accused persons and was suppressing the truth and giving

a false statement in order to protect them. This witness had

deposed that his statement was recorded by the police and he had

admitted that at 1 AM, Bindeshwari Mandal, Adhik Lal Mandal

and Jogi Mandal had come to his door and took his brother,

Rajendra Mandal, towards the western side. He further admitted

that he had also stated before the police that on hearing the noise

coming from behind his house, when he went there, he saw Adhik

Lal Mandal, Bindeshwari Mandal and Jogi Mandal running away

in the light of the torch. This witness, however, denied the

suggestion that he had stated before the police that he had seen a .

303 rifle in the hand of Jogi Mandal.

56. In the cross-examination on behalf of the accused,

this witness (PW 8) has deposed that he had not disclosed to the

Investigating Officer the names of the persons, other than the

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members of the wedding party, who had attended the feast. He

deposed that he did not remember what facts he had stated or

omitted to state before the Investigating Officer. This witness

further deposed that he did not remember whether he had informed

the Investigating Officer that the three accused persons had come

out from his door or whether he had seen them running away. He

further deposed that Yogi Mandal, Babulal Mandal and Tej

Narayan Mandal had accompanied him towards the field situated

behind the house as he had gone there to ascertain who had shot

Rajendra Mandal. This witness had further deposed that the dead

body of Rajendra Mandal was not lying adjacent to the bamboo

fencing of the house but was found in the field. According to him,

the body was lying in front of the hand pump situated behind the

house. He further deposed that the hand pump was at a distance of

about 50 feet or approximately 100 cubits, from his house. He

further deposed that he had seen blood on the ground at the place

where the body had fallen and the Investigating Officer had also

inspected the said place.

57. PW 9, Ganesh Mandal (informant of this case), in his

examination-in-chief, has deposed that the occurrence had taken

place at around 1 AM during the night when a baarat party had

arrived at his house on the occasion of marriage of his niece. At

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the relevant time, he was serving food to the wedding guests. At

that time, Bindeshwari Mandal, Yogendra Mandal and Adhik Lal

Mandal came there. Immediately after their arrival, they called

Rajendra Mandal, who was his son, and took him towards the

western side. Shortly thereafter, a sound was heard from that

direction and on hearing, he, along with Valmiki Mandal, Lucho

Mandal, Brahmdev Mandal, Badrinath Mandal, Tej Narayan

Mandal and others, proceeded towards the place of occurrence.

58. This witness (PW 9) has deposed that he had a torch

in his hand and in its light, he found Rajendra Mandal lying dead.

He further deposed that Rajendra had sustained a gunshot injury

on his chest. He further deposed that in the torchlight, he saw

Bindeshwari Mandal, Adhik Lal Mandal and Yogendra Mandal

running away from the place of occurrence and Yogendra Mandal

was carrying a .303 rifle in his hand and was running towards the

south-west direction.

59. This witness (PW 9) has further deposed that it was

drizzling at the time of occurrence. He further deposed that a

criminal case was pending against the accused persons and due to

the said case, the accused persons had committed the present

occurrence. He further deposed that the said case was a murder

case and had been decided against them. This witness further

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deposed that on the following Wednesday, Lucho Mandal, Valmiki

Mandal, Tej Narayan Mandal and Bachneshwar Mandal

accompanied him to the police station along with the dead body of

his son, Rajendra Mandal at 9 AM. He identified his signature on

the First Information Report.

60. In the cross-examination, This witness (PW 9) has

deposed that the police station is about one kilometre away from

his village and no one had gone to the police station in the night of

the occurrence.

61. This witness (PW 9) has further deposed that he had

signed a written paper prepared by Valmiki Mandal at the police

station and thereafter he was never shown the said document or

permitted to see his signature again. He deposed that the wedding

procession was that of Vilangraj and that the members of the

wedding party had gone to sleep at about 9 to 10 PM. This witness

has further deposed that after hearing some noise, his wife woke

him up. He stated that he was sleeping at that time and, after

getting up, he went through the back door of his house. According

to him, the torchlight was dim and was directed towards the west

and the place where the dead body was lying was at a distance of

about two ropes from his house. He stated that the field in which

Rajendra had fallen was a separate field situated at some distance.

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62. This witness (PW 9) has further deposed that he saw

the accused persons running away and that they must have been at

a distance of about one and a half ropes from him. He explained

that one rope was equivalent to 20 poles and each pole measured

about six and a half cubits. He further stated that he had installed

the battery in his torch about one month prior to the occurrence

and that a person standing at a distance of about one rope could be

clearly seen in the torchlight.

63. This witness (PW 9) has further stated that he reached

the place of occurrence ten minutes after hearing the noise and

other persons arrived there about ten minutes after him. However,

he voluntarily clarified that all of them reached the place of

occurrence almost simultaneously. He further stated that the

witnesses were present at a distance of about five to six poles from

the dead body.

64. This witness (PW 9) has further admitted that

litigation was already pending between him and the accused

persons. He stated that he himself was an accused in the murder

case of Naresh Mandal, in which the deceased Rajendra Mandal

was also an accused. He further stated that after the murder of

Naresh Mandal, he was not on visiting terms with the family of the

accused persons and such relations had resumed two months prior

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to the present occurrence. He deposed that after the murder of

Naresh Mandal and before the resumption of relations, the accused

persons were not on visiting terms with his family and there had

been no exchange of food or social relations between them.

65. This witness (PW 9) has further stated that the place

of occurrence was situated towards the east of the village, though

he voluntarily clarified that it might have been about two ropes

away. This witness (PW 9) has denied the suggestion that his sons

were accused in any theft or robbery case prior to the occurrence.

He further denied the suggestion of the defense that his son was a

criminal and had been killed for that reason or the accused persons

had been falsely implicated in the present case.

66. Having carefully re-appreciated the entire evidence

on record, this Court proceeds to examine whether the prosecution

has succeeded in proving the guilt of the appellant beyond

reasonable doubt.

67. The prosecution case is founded principally upon the

evidence of related witnesses, namely PW 1, PW 2, PW 8 and PW

9, coupled with the alleged circumstance that the deceased was

last seen alive in the company of the accused shortly before he

sustained the fatal firearm injury. There is no eyewitness to the

occurrence of firing of bullet upon the deceased, who could have

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consistently and unequivocally narrated the entire sequence of

occurrence from the act of taking away the deceased till the actual

firing and death. The prosecution, therefore, sought to establish its

case through a combination of direct and circumstantial evidence,

clubbing the chain of the entire occurrence.

68. PW 1 deposed that the accused came to his house,

called Rajendra Mandal outside and took him towards the western

side of the house. Shortly thereafter, he heard a gunshot and found

the deceased lying dead in the field. Significantly, PW 1 never

claimed to have witnessed the actual firing nor did he state that he

had seen any accused fleeing from the place of occurrence. His

evidence is, therefore, confined to the circumstance that the

accused allegedly took the deceased with them immediately before

the occurrence.

69. During cross-examination, PW 1 admitted that both,

he and the informant, were facing trial in the earlier murder case,

in which the appellants were prosecution witnesses. This

admission assumes considerable importance because it established

a strong possibility of animosity and furnished a motive for false

implication.

70. Another aspect which deserves notice is that PW 1

admitted that nearly four or five independent villagers were

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present at the marriage feast. Despite their admitted presence by

this witness, none of those independent persons had been

examined by the prosecution to support the alleged fact that the

appellants had taken the deceased away. The prosecution has

offered no explanation for withholding such natural witnesses.

71. PW 2 occupied a peculiar position in the prosecution

case. In his examination-in-chief, he deposed that after hearing the

gunshot, he rushed towards the place of occurrence and saw the

accused running away in the light of a torch. However, during

cross-examination, he made a substantial improvement by

asserting that he had actually witnessed Yogi Mandal firing at the

deceased after covering a distance of about twenty-five cubits

from the entrance of the house.

72. This improvement assumes significance because this

witness further admitted that he had not stated before the

Investigating Officer that he had seen Yogi Mandal firing in the

torchlight. He also admitted that he had not stated before the

Investigating Officer that reconciliation talks were going on

between the parties.

73. An omission relating to the most important material

part of the prosecution story, such as witnessing of the actual

firing, cannot be treated to be a minor discrepancy. It amounts to

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material improvement affecting the credibility of a witness. Thus,

the claim of PW 2 of having witnessed the firing cannot be safely

relied upon.

74. PW 8, though he admitted portions of his statement

before the police during cross-examination by the prosecution, it is

well settled that the previous statement recorded under Section

161 of the Code of Criminal Procedure, 1973, is not substantive

evidence and can only be utilized for contradiction. The

prosecution cannot rely upon the police statement itself as proof of

the facts contained therein. Consequently, PW-8 lends no

substantive support to the prosecution on the crucial aspect of

identification of the assailants.

75. PW 9 is the informant and father of the deceased. He

deposed that after hearing the sound, he proceeded towards the

place of occurrence and saw the appellants running away in the

torchlight. However, his own cross-examination reveals several

inconsistencies. He initially stated that he reached the place of

occurrence about ten minutes after hearing the sound and further

stated that other witnesses arrived about ten minutes after him, but

immediately volunteered that everyone had reached

simultaneously. These inconsistent versions create uncertainty

regarding the actual sequence of events.

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76. More importantly, PW 9 admitted that the deceased

was found in a field surrounded by maize crops. He further

admitted that the appellants were at a considerable distance from

him when allegedly identified through torchlight. His admission

regarding previous enmity further necessitates cautious scrutiny of

his testimony.

77. Upon an overall reading of the prosecution evidence,

it emerged that PW 2 claimed to have seen the actual firing,

whereas PW 1, PW 8 and PW 9 did not claim to have witnessed

the firing itself. PW 2 admitted that this important fact was never

disclosed before the Investigating Officer, rendering it a material

improvement. The testimony of PW 8 is of limited evidentiary

value. It corroborates the factum of the occurrence, the discovery

of the deceased with a firearm injury, and the location where the

body was found. However, it does not constitute reliable

substantive evidence connecting the accused persons with the

commission of the offence. His evidence, therefore, cannot, by

itself, be made the basis for recording a finding of guilt against the

accused and requires substantial corroboration from other reliable

evidence on record. PW 2 and PW 9 claimed to have identified all

three accused while fleeing. Although several independent

villagers were admittedly present at the marriage feast, none has

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been examined during the trial. One material witness, i.e. PW 11,

did not support the prosecution and was declared hostile.

78. At the outset, it is evident that previous enmity

between the parties stands admitted by almost every prosecution

witness. PW 1 admitted that he and the informant were accused in

the murder case of one Naresh Mandal; whereas the appellants

were prosecution witnesses therein. PW 2 also admitted the

pendency of the earlier murder case and further admitted that he

himself was an accused in that case. PW 9, the informant,

similarly admitted that both he and the deceased were accused in

the murder case relating to Naresh Mandal. Thus, previous

hostility between the parties is not a matter of inference, but an

admitted fact.

79. The law is well settled that enmity is a double-edged

weapon. While it may constitute a motive for commission of the

offence, it equally furnishes a motive for false implication.

Consequently, where prosecution evidence emanates from inimical

witnesses, the Court is required to subject such evidence to careful

scrutiny. Mere relationship with the deceased does not render a

witness unreliable; nevertheless, where relationship is coupled

with admitted and deep-rooted hostility, the Court must seek

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assurance from independent and objective circumstances before

sustaining a conviction.

80. In the present case, the Investigating Officer could

not be examined during trial as he had died prior to the recording

of evidence. Formal witnesses have merely proved the First

Information Report, inquest report, seizure list and charge-sheet by

identifying the handwriting and signatures of the deceased

Investigating Officer. The substantive evidence of investigation is,

therefore, conspicuously absent. It is true that non-examination of

the Investigating Officer is not per se fatal to the prosecution.

81. The settled principle is that where reliable ocular and

documentary evidence is otherwise available, the mere non-

examination of the Investigating Officer does not necessarily

vitiate the trial. However, where the prosecution case suffers from

material contradictions, omissions or improvements, the

examination of the Investigating Officer assumes considerable

significance because he alone is competent to prove the statements

recorded under Section 161 of the Code of Criminal Procedure,

the preparation of the site plan, and the manner in which the

investigation was conducted.

82. In the present case, several prosecution witnesses

admitted during cross-examination that they had not stated before

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the Investigating Officer certain facts which they later deposed

before the Court. PW 2, for instance, admitted that he had not

stated before the Investigating Officer that he had actually seen

Yogi Mandal firing the bullet shot upon the deceased Rajendra

Mandal in the torchlight. This omission assumes considerable

importance because it relates to the very core of the prosecution

case. Ordinarily, such contradictions and omissions are required to

be proved through the testimony of the Investigating Officer in

accordance with law.

83 Similarly, disputes have arisen regarding the exact

place of occurrence, the position of the dead body, the direction

from which the accused allegedly fled, the distance between the

witnesses and the place of occurrence, and other material features

of the prosecution case. In the absence of the Investigating Officer,

the defence has been deprived of the valuable opportunity of

confronting him with these aspects and testing the veracity of the

investigation.

84. The prosecution has also failed to examine any

independent villager despite the admitted presence of a large

number of persons at the marriage feast inasmuch as PW 1

admitted that several local residents were serving food, PW 2

named a number of independent persons present at the venue and

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PW 3 similarly admitted that many villagers had assembled there,

yet none of those independent witnesses have been examined

without any satisfactory explanation. The withholding of natural

witnesses assumes importance in view of the admitted previous

hostility between the parties.

85. Having carefully appreciated the evidence on record,

this Court finds that the prosecution case substantially rests upon a

chain of circumstantial evidence, namely: (i) the appellants

allegedly called the deceased from the marriage ceremony; (ii) the

deceased was last seen accompanying them; (iii) a gunshot was

heard shortly thereafter; (iv) the deceased was found lying dead in

the adjoining field with a firearm injury; (v) some prosecution

witnesses claimed to have seen the appellants running away; and

(vi) previous enmity allegedly supplied the motive.

86. It is trite that where the prosecution relies upon

circumstantial evidence, each incriminating circumstance must not

only be proved beyond reasonable doubt but all the circumstances,

when taken cumulatively, must form a complete chain so as to

exclude every reasonable hypothesis except the guilt of the

accused. The law on this aspect stands settled in Sharad

Birdhichand Sarda v. State of Maharashtra, reported in (1984)

4 SCC 116, wherein the Apex formulated the celebrated "five

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golden principles" governing conviction based on circumstantial

evidence. These principles require that:

“(i) the circumstances from which the

conclusion of guilt is to be drawn must be fully

established;

(ii) the circumstances so established

must be consistent only with the hypothesis of the

guilt of the accused;

(iii) the circumstances must be of a

conclusive nature and tendency;

(iv) they should exclude every possible

hypothesis except the one sought to be proved; and

(v) there must be a complete chain of

evidence which leaves no reasonable ground for a

conclusion consistent with the innocence of the

accused.”

87. Applying the aforesaid principles to the present

case, this Court finds that the prosecution has failed to establish

an uninterrupted chain of circumstances. The first circumstance

relied upon by the prosecution is that the appellants had called

the deceased from the marriage feast. Though PW 1, PW 2, and

PW 9 have spoken to this circumstance, all of them are

admittedly closely related to the deceased and have also admitted

previous hostility with the appellant. No independent witness

from amongst the numerous villagers admittedly present at the

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marriage ceremony has been examined to corroborate this

circumstance. The withholding of such natural witnesses assumes

significance, particularly when the prosecution seeks to establish

the first and most important link of the chain through interested

witnesses alone.

88. The second circumstance is the alleged "last seen

together". It is well settled that the "last seen" theory is only a

weak piece of evidence unless the time gap between the accused

and the deceased being seen together and the discovery of the

dead body is so small that the possibility of any other person

intervening is completely ruled out.

89. In the present case, although the prosecution

alleges that the deceased was taken away immediately before the

firing, the evidence regarding the exact time gap, the distance

travelled, and the sequence of events is far from consistent. PW 9

himself gave inconsistent versions regarding the time when he

reached the place of occurrence, while PW 2 materially improved

his testimony by claiming for the first time before the Court that

he had actually witnessed the firing. Such inconsistencies

diminish the evidentiary value of the "last seen" circumstance.

90. The third circumstance relied upon is that the

appellants were seen fleeing from the place of occurrence.

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However, this circumstance also does not inspire confidence.

While PW 2 and PW 9 claimed to have identified the appellants

in the torchlight, PW 3 categorically stated that he had not seen

anybody running away and merely heard people saying that some

persons had fled away. This contradiction goes to the root of the

prosecution case because identification of the fleeing assailants

constitutes an essential link in the chain of circumstances.

91. Further, the prosecution witnesses themselves

admit that the occurrence took place at about 1 AM. in darkness,

the deceased was lying in the field, and the alleged identification

was made from a considerable distance through torchlight. More

so, when the appellants were fleeing from the place of occurrence

against the direction from which the prosecution witnesses had

come, in the torch light, they will see their backs and not their

faces, In the absence of any independent corroboration, such

identification requires cautious scrutiny.

92. The prosecution has also relied upon motive

arising out of previous enmity. It is well settled that motive alone

can never take the place of proof. Equally settled is the principle

that previous enmity is a double-edged weapon. While it may

furnish a motive for the commission of the offence, it

simultaneously provides a motive for false implication.

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Consequently, motive by itself cannot complete an otherwise

incomplete chain of circumstantial evidence.

93. Another important circumstance which cannot be

ignored is the failure of the prosecution to produce independent

corroborative evidence. Admittedly, several villagers and

wedding guests were present at the place of occurrence.

Nevertheless, the prosecution has examined only close relatives

or persons closely associated with the informant. The

unexplained non-examination of independent witnesses assumes

considerable importance in a case founded primarily on

circumstantial evidence.

94. Viewed from the aforesaid legal perspective, this

Court finds that the prosecution has undoubtedly proved the

homicidal death of Rajendra Mandal. Nevertheless, the

circumstances relied upon to connect the appellants with the

crime do not form a complete and unbroken chain. The evidence

regarding the actual firing is inconsistent; the circumstance of

identification of the fleeing appellants is contradicted by one of

the principal witnesses; the alleged "last seen" evidence is

supported only by interested witnesses; material improvements

have surfaced and the prosecution has failed to examine

independent witnesses despite their admitted presence. These

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deficiencies create reasonable doubt regarding the completeness

of the prosecution case.

95. In the facts and attending circumstances of the

present case, the appellant ought to have been accorded benefit of

reasonable doubt inasmuch as the prosecution had failed, in the

light of the discussion of the evidence on record, to bring home

the charges against the appellant beyond all reasonable doubt.

96. In the result and for the foregoing reasons, this

appeal is allowed. The impugned conviction of the appellant and

the sentence passed against him by the judgment and order, under

appeal, are hereby set aside. The appellant is held not guilty of

the offence, which he stand convicted of, and he is hereby

acquitted of the same under benefit of doubt.

97. Since the appellant is on bail, his bail bonds are

hereby cancelled and his sureties shall stand discharged.

98. Registry shall, forthwith, send a copy of this

judgment and order to the learned trial Court along with the

Lower Court Records.

99. This Court places on record its sincere

appreciation for the valuable assistance rendered by learned

Amicus Curiae, Ms. Surya Nilambari. Through careful

preparation, objective submissions and dedicated efforts, the

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learned Amicus Curiae has assisted the Court in the fair and

effective adjudication of the matter. The Court acknowledges and

commends such contribution with gratitude.

100. Let the Amicus Curiae be paid a sum of Rs.

10,000/- by the Patna High Court Legal Services Committee.

(Anil Kumar Sinha, J.)

Alok Kumar, J.:

Prabhakar Anand/-

I agree.

(Alok Kumar, J.)

AFR/NAFR AFR

CAV DATE 06-07-2026

Uploading Date 21-07-2026

Transmission Date 21-07-2026