Appeals against conviction under Section 364 IPC for kidnapping, sentenced to ten years' rigorous imprisonment. The High Court found the eyewitness testimony unreliable hearsay, an unexplained seventeen-day FIR delay, non-examination of the Investigating Officer, and defective Section 313 examination, and set aside the conviction.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (SJ) No.229 of 2004
Arising Out of PS. Case No.-74 Year-1999 Thana- MURLIGANJ District- Madhepura
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RAM PRASAD YADAV S/o- Late Ganga Prasad Yadav R/v- Ramni PsMurliganj Dist- Madhepura
... ... Appellant/s
Versus
The State of Bihar Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (SJ) No. 240 of 2004
Arising Out of PS. Case No.-74 Year-1999 Thana- MURLIGANJ District- Madhepura
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Ajay Kumar Yadav S/O Sri Ram Prasad Yadav R/O Village- Ramni, P.SMurliganj, Distt.- Madhepura.
... ... Appellant/s
Versus
The State of Bihar Bihar
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (SJ) No. 229 of 2004) For the Appellant/s : Mr. Sanjay Kumar, Advocate For the Respondent/s : Mrs. Anita Kumari Singh, A.P.P. (In CRIMINAL APPEAL (SJ) No. 240 of 2004) For the Appellant/s : Mr. Sanjay Kumar, Advocate For the Respondent/s : Mrs. Anita Kumari Singh, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY ORAL JUDGMENT
Date : 20-09-2025
Both the above stated appeals have arisen out of same judgment of conviction dated 26.03.2004 and order of sentence dated 29.03.2004 and accordingly they have been heard together and a common judgment is being passed in both the above stated appeals.
Patna High Court CR. APP (SJ) No.229 of 2004 dt.20-09-2025 2/29
learned A.P.P. for the State.
Patna High Court CR. APP (SJ) No.229 of 2004 dt.20-09-2025 3/29
Pratapnagar alonwith informant’s son, namely, Rakesh Kumar Yadav. Thereafter, the informant made enquiry from the father of appellant-Ajay Kumar Yadav who disclosed that he sent his son to Pratapnagar for some urgent work and they would be returned back by the evening. It is alleged that when the son of informant did not return in the evening, informant proceeded to Pratapnagar to trace his son and when informant reached Pratapnagar, he saw that in the garden of Maksoodan Singh, coaccused Sukal Yadav had forcibly made informant’s son sit on a Rajdoot motorcycle by showing him a 'three-nut' and threatening him to kill and appellant- Ajay Kumar Yadav was seated behind him on the motorcycle. It is alleged that co-accused Sukal Yadav gave his three-nut to appellant -Ajay Kumar Yadav and told that if victim raises alarm, he would be killed. Thereafter, they proceeded alongiwth the victim towards village Rajni on motorcycle with intention to kidnap. It is further alleged kidnappers were on two motorcycles and three persons were sitting on another motorcycle to whom the informant could not see but claimed to identify after seeing their face. It is alleged that that the occurrence has been witnessed by Badri Yadav (P.W.3), Arbind Yadav (not examined), Vedanand Yadav (P.W.4) and Ramesh Kumar Yadav (P.W.1) and other villagers. It is
Patna High Court CR. APP (SJ) No.229 of 2004 dt.20-09-2025 4/29
further alleged that on 04.06.1999 Panchayati had taken place in village Ramni in respect of kidnapping of informant’s son where appellant - Ram Prasad Yadav accepted the factum of kidnapping and assured that he would assist in recovery of his son. On the said assurance, informant waited for three to four days. In the evening of 08.06.1999, informant learnt from some persons that his son was killed by the kidnappers.
Patna High Court CR. APP (SJ) No.229 of 2004 dt.20-09-2025 5/29
PW-1 Ramesh Kumar, PW-2 Shiv Nandan Yadav (informant of the case), PW-3 Badri Yadav, PW-4 Vedanand Yadav , PW-5 Raj
Nandan Yadav.
Ext. 1- Signature of informant on written report.
Ext. 1/1 – Signature of informant on statement
recorded under Section 164 Cr.P.C.
Patna High Court CR. APP (SJ) No.229 of 2004 dt.20-09-2025 6/29
submits that P.W. 1 is son of informant’s brother-in-law and the said fact has been admitted in para 7 of cross examination of the P.W. 2. P.W. 3 is samdhi of informant and he is also a chance witness. P.W. 5 has not supported the prosecution case and hence, he has been declared hostile.
Patna High Court CR. APP (SJ) No.229 of 2004 dt.20-09-2025 7/29
persons, who were present at the place of occurrence, are eye witness of the occurrence, then, question arises how the source of information is shared by P.W. 1 to P.W. 2, if both are witnessing the occurrence. He further submits that P.W. 2 has narrated the story that a Panchayati had taken place so he waited for some days to initiate prosecution story but the said statement is quite inconsistent as P.W. 2 in para-4 of his cross examination has stated before the Magistrate that no Panchayati has taken place in respect of kidnapping. He further submits that if all are the eye witness of the said occurrence, no question arises with regard to share the source of information regarding the occurrence to one another. Learned counsel for the appellants further submits that prosecution has not proved the case beyond all reasonable doubt and the statement of witnesses are quite shaky when they are claiming to be the eye witnesses of the occurrence. He further submits that after close scrutiny of statement of P.W. 1, it is found that he came to know about the occurrence and after that he has informed to the informant (P.W.2) regarding the occurrence which means that he has not seen the occurrence. P.W. 2, who is informant of the case, has himself stated that he has seen the occurrence with his own eyes and he has not explained regarding delay of 17 days in lodging
Patna High Court CR. APP (SJ) No.229 of 2004 dt.20-09-2025 8/29
the FIR, though occurrence took place on 04.06.1999 and how the story narrated by informant would be trustworthy in the light of the fact that informant's son has been kidnapped and he waited for 17 days to lodge the FIR. Learned counsel for the appellants has submitted that the very clear cut suggestion was given by the appellants’ side that the deceased was in the company of Bhado Yadav and there might be possibility that he was being accompanied by the person who involved in such kind of activity and the appellants have no role to play, so far as the material available on record does not prove the culpability of appellants. He further submits that there are other miscreants also as evident from FIR but they were not identified and no investigation was done and I.O. has not been examined so several other questions are left unattended. So far as contradictions and inconsistencies between the statements of witnesses are concerned, the prosecution has failed to prove the case beyond reasonable doubt.
Patna High Court CR. APP (SJ) No.229 of 2004 dt.20-09-2025 9/29
occurrence and has supported the story of prosecution during the course of examination-in-chief. Though some contradictions are bound to occur in natural course but other witnesses have supported the occurrence and in the light of the facts and circumstances of the case, prosecution has proved its story and the concerned court has passed the judgment of conviction and order of sentence on the basis of material available on record. Hence, no interference is needed. It has been submitted that even I.O. has not been examined but the material witnesses i.e. informant and other witnesses, who have seen the occurrence as is evident from the FIR, have supported the story of prosecution.
Patna High Court CR. APP (SJ) No.229 of 2004 dt.20-09-2025 10/29
whose son has been kidnapped, has disclosed the manner of occurrence. It is necessary to test the veracity of this witness upon the touchstone of manner of occurrence, time of occurrence and place of occurrence.
eye witness of the occurrence as per version of his written statement and he has stated that other persons namely, Badri Yadav(P.W. 3), Arvind Yadav(not examined), Vedanand Yadav(P.W. 4) and Ramesh Kumar Yadav (P.W.1) had also seen the occurrence but during cross examination in para-4 he has stated before the Magistrate that no Panchayati has taken place in respect of kidnapping but in FIR he has stated that on 04.06.1999 Panchayati had taken place in village Ramni in respect of kidnapping of informant’s son. He has also not stated before the Magistrate that he waited for 3-4 days on the assurance of returning back of his son. He has stated before the Magistrate that on 08.06.1999 by evening, his kidnapped son had been killed. The statement of P.W. 2 in examination in chief is just like parrot version but during the cross-examination his statement is quite inconsistent. His statement is quite inconsistent with regard to source of information regarding the alleged occurrence. He has stated in para-7 of his cross
Patna High Court CR. APP (SJ) No.229 of 2004 dt.20-09-2025 11/29
examination that Ramesh Yadav (PW-1) has given the information that his son was kidnapped on the point of three nut upon a motorcycle which is totally inconsistent with the initial version of prosecution story.
Patna High Court CR. APP (SJ) No.229 of 2004 dt.20-09-2025 12/29
alongwith Ganesh Yadav and Surendra Yadav and after covering some distance, they returned but Ganesh Yadav and Surendra Yadav have not been examined on behalf of the prosecution. The veracity of evidence of PW-2 is already in question regarding the source of information of alleged occurrence. He has also stated that he went Pratapnagar alongwith Ganesh Yadav and Surendra Yadav but Ganesh Yadav and Surendra Yadav have not been examined on behalf of the prosecution. The statement of PW-1 and PW-2 are quite shaky in light of the discussions made above.
Patna High Court CR. APP (SJ) No.229 of 2004 dt.20-09-2025 13/29
as in para 3 of his cross examination he has deposed that police has taken his statement whereas in para 4 of cross examination he deposed that police has not made any query. Being relative, he was assisted by P.W. 2 to adduce his statement in court. He is merely a chance witness and at the relevant time of occurrence whether he was working at the field same was denied by him. His statement is quite shaky as at one time he stated that he was working in the field and another time he stated before the court that he was not working in the field at the relevant time. His presence on the point of occurrence is quite contradictory.
Patna High Court CR. APP (SJ) No.229 of 2004 dt.20-09-2025 14/29
evident from his examination in chief and he deposed that he learnt regarding the alleged occurrence after some time.
has no knowledge regarding the occurrence. He has been declared hostile by the prosecution.
Patna High Court CR. APP (SJ) No.229 of 2004 dt.20-09-2025 15/29
omissions in the witnesses' statements. In Behari Prasad Vs. State of Bihar reported in (1996) 2 SCC 317 , the Hon’ble Supreme Court held that though non-examination of the Investigating Officer may not always be fatal where it causes prejudiced to the accused, it becomes a significant infirmity, as observed in the judgment which reads as under:-
"We may also indicate here that it will not be correct to contend that if an Investigating Officer is not examined in a case, such case should fail on the ground that the accused were deprived of the opportunity to effectively cross examine the witnesses for the prosecution and to bring out contradictions in their statements before the police. A case of prejudice likely to be suffered by an accused must depend on the facts of the case and no universal straight jacket formula should be laid down that non examination of investigating Officer per se vitiates a criminal trial. These appeals, therefore, fail and are dismissed. The appellants who have been released on bail should be taken into custody to serve out the sentence."
Patna High Court CR. APP (SJ) No.229 of 2004 dt.20-09-2025 16/29
the statements of the witnesses and the only person who could have clarified or explained such contradictions was the Investigating Officer.
(i) Dilawar Singh Vs State of Delhi reported in AIR 2007 Supreme Court 3234 wherein at para 8, the Hon’ble Supreme Court has held as follows:-
8. In criminal trial one of the cardinal principles for the Court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of
Patna High Court CR. APP (SJ) No.229 of 2004 dt.20-09-2025 17/29
the unsoiled and untarnished version of the case to be presented before the Court at the earliest instance. That is why if there is delay in either coming before the police or before the Court, the Courts always view the allegations with suspicion and look for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to the prosecution case.
(ii) In Jasbir Singh Vs State reported in 2022 SCC OnLine Del 1427 wherein at para 24 it has been held as
follows:-
“24. In the instant case, the FIR was lodged by the complainant after an inordinate and unexplained delay of three days at Police Station, which renders the FIR in this case wholly unreliable. The delay in lodging the FIR corrodes the credibility of the prosecution story. The Hon'ble Supreme Court in several cases held that delay in loading the FIR creates a doubt, if the said delay is not properly explained.”
(iii) In Thulia Kali v. The State of Tamil Nadu reported in (1972) 3 SCC 393, the Hon’ble Supreme Court, emphasizing the necessity of explaining the delay in lodging
Patna High Court CR. APP (SJ) No.229 of 2004 dt.20-09-2025 18/29
FIR, has held as follows:-
12…. First Information Report in
a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the First Information Report quite often results in embellishment which is a creature of afterthought. On account of delay the report not only gets bereft of the advantage of spontaneity danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained.…"
(iv) In Meharaj Singh & Ors. Vs. State of U.P. &
Patna High Court CR. APP (SJ) No.229 of 2004 dt.20-09-2025 19/29
Ors. Reported in (1994) 5 SCC 188 the Supreme Court has observed as follows:-
“12... The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eye witnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR, was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the
Patna High Court CR. APP (SJ) No.229 of 2004 dt.20-09-2025 20/29
delay in dispatching or receipt of the copy of the FIR by the local Magistrate. Prosecution has led no evidence at all in this behalf. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174 Cr. P.C. is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante timed to give it the colour of a promptly lodged FIR…"’
(v) In Satpal Singh Vs. State of Haryana reported in
(2010) 8 SCC 174 , the Hon’ble Supreme Court has observed as follows:-
“15. This Court has consistently highlighted the reasons, objects and means of prompt lodging of FIR. Delay in lodging FIR more often than not, results in embellishment
Patna High Court CR. APP (SJ) No.229 of 2004 dt.20-09-2025 21/29
and exaggeration, which is a creature of an afterthought. A delayed report not only gets bereft of the advantage of spontaneity, the danger of the introduction of a coloured version, an exaggerated account of the incident or a concocted story as a result of deliberations and consultation, also creeps in, casting a serious doubt on its veracity. Thus, FIR is to be filed more promptly and if there is any delay, the prosecution must furnish a satisfactory explanation for the same of the reason that in case the substratum of the evidence given by the complainant/informant is found to be unreliable, the prosecution case has to be rejected in its entirety.
Patna High Court CR. APP (SJ) No.229 of 2004 dt.20-09-2025 22/29
Informant saw that in the garden of Maksoodan Singh, coaccused Sukal Yadav had forcibly made informant’s son sit on a Rajdoot motorcycle by showing him a 'three-nut' and threatening him to kill and appellant- Ajay Kumar Yadav was seated behind him on the motorcycle. It is alleged that kidnappers were on two motorcycles and three persons were sitting on another motorcycle.
Patna High Court CR. APP (SJ) No.229 of 2004 dt.20-09-2025 23/29
16. The law consistently laid down by this Court can be summarized as under:
(i) It is the duty of the Trial Court to put each material circumstance appearing in the evidence against the accused specifically, distinctively and separately. The material circumstance means the circumstance or the material on the basis of which the prosecution is seeking his conviction;
(ii) The object of examination of the accused under Section 313 is to enable the accused to explain any circumstance appearing against him in the evidence;
(iii) The Court must ordinarily eschew material circumstances not put to the accused from consideration while dealing with the case of the particular accused;
(iv) The failure to put material circumstances to the accused
Patna High Court CR. APP (SJ) No.229 of 2004 dt.20-09-2025 24/29
amounts to a serious irregularity. It will vitiate the trial if it is shown to have prejudiced the accused;
(v) If any irregularity in putting the material circumstance to the accused does not result in failure of justice, it becomes a curable defect. However, while deciding whether the defect can be cured, one of the considerations will be the passage of time from the date of the incident;
(vi) In case such irregularity is curable, even the appellate court can question the accused on the material circumstance which is not put to him; and
(vii) In a given case, the case can be remanded to the Trial Court from the stage of recording the supplementary statement of the concerned accused under Section 313 of CrPC.
(viii) While deciding the question whether prejudice has been caused to the accused because of the omission, the delay in raising the contention is only one of the several factors to be considered."
Patna High Court CR. APP (SJ) No.229 of 2004 dt.20-09-2025 25/29
lightly dealt with the requirement under Section 313 Cr.P.C. and has practically put no incriminating circumstance to the appellants for him to answer.
Patna High Court CR. APP (SJ) No.229 of 2004 dt.20-09-2025 26/29
PW 1 categorically deposed that he only came to know of the kidnapping and thereafter informed the informant (PW2). It has also been admitted that PW-1 and PW-2 are related. This renders the prosecution version inconsistent, for if the FIR treats them all as eyewitnesses, the very question arises as to why the matter had to be communicated afresh by PW-1 to PW-2. The evidence unmistakably shows that PW-1 is not an eyewitness to the alleged incident, his knowledge is purely derivative and secondhand. Consequently, PW-2, being the ultimate recipient of this information, stands on no better footing. His testimony is hearsay in nature and thus unreliable as substantive evidence. There are several inconsistencies found in the evidence of PW-2 as well as PW-1 so far as initial version of prosecution story is concerned. Further, the statement adduced by PW-2 in the Court is quite inconsistent with the story of prosecution and inconsistencies are of such nature which creates serious dent in the prosecution story as initial version of prosecution story does not reflect that the source of information was based on the information given by PW-1 but during the course of evidence it is found that source of information for lodging the FIR is based upon the information shared by PW-1 to PW-2. In this way, initial version of PW2 is totally contradicted by the evidence
Patna High Court CR. APP (SJ) No.229 of 2004 dt.20-09-2025 27/29
adduced by PW-1 and PW-2 himself. The inconsistency clearly indicates that the delay in lodging the FIR was utilized to prepare a suitable prosecution version in order to cover up the inherent lacunae. Even the manner in which the son of the informant was allegedly taken away, as claimed by witnesses, appears doubtful. Notably, no sanha entry was made, which casts further suspicion on the prosecution story. Such a deceptive and concocted approach cannot inspire confidence and does not constitute reliable evidence in law.
Patna High Court CR. APP (SJ) No.229 of 2004 dt.20-09-2025 28/29
has been shared to the informant. If this is the basis of the prosecution story, then, the claim of informant that he is eye witness of the alleged occurrence is quite shaky as the source of information is shared by PW-1, who himself is not an eye witness of the alleged occurrence as his knowledge is purely derivative and second hand on the basis of his admission during cross examination. In that situation, none of the witnesses are eye witness of the occurrence, though, they are claiming to be eye witnesses of the occurrence, and if they are eye witnesses, then, the informant who is father of the victim might lodge the FIR on the alleged date of occurrence. Furthermore, number plate of motorcycle which has been used in kidnapping of informant's son has not been subjected to investigation. Another motorcycle has been used in the alleged occurrence by the other miscreants but they have also not been identified. These are several questions which are left unattended due to non examination of I.O.
Patna High Court CR. APP (SJ) No.229 of 2004 dt.20-09-2025 29/29
impugned judgment of conviction dated 26.03.2004 and order of sentence dated 29.03.2004 are hereby set aside. Accordingly, both the appeals stand allowed. Both the appellants are on bail. They are discharged from the liability of their bail bonds.
(Alok Kumar Pandey, J)
alok/shahzad-
| AFR/NAFR | AFR |
|---|---|
| CAV DATE | N/A |
| Uploading Date | 27.09.2025. |
| Transmission Date | 27.09.2025. |
Colour shows how this judgement treated each authority
Behari Prasad Vs. State of BiharApplied¶25
(1996) 2 SCC 317 · Who else cites this
Syed Ibrahim versus State of Andhra PradeshRelied on¶27
(2008) 10 SCC 601 · Who else cites this
Dilawar Singh Vs State of DelhiRelied on¶28
AIR 2007 Supreme Court 3234 · Who else cites this
Jasbir Singh Vs StateRelied on¶28
2022 SCC OnLine Del 1427 · Who else cites this
Thulia Kali v. The State of Tamil NaduRelied on¶28
(1972) 3 SCC 393 · Who else cites this
Meharaj Singh & Ors. Vs. State of U.P. & Ors.Relied on¶28
(1994) 5 SCC 188 · Who else cites this
Satpal Singh Vs. State of HaryanaRelied on¶28
(2010) 8 SCC 174 · Who else cites this
Raj Kumar alias Suman v. State (NCT of Delhi)Relied on¶33
AIR 2023 SC 3113 · Who else cites this
Tara Singh v. StateReferred¶34
AIR 1951 SC 441 · Who else cites this
Shivaji Sahabrao Bobade v. State of MaharastraReferred¶34
AIR 1973 SC 2622 · Who else cites this
S. Harnam Singh v. State (Delhi Admn.)Referred¶34
AIR 1976 SC 2140 · Who else cites this
5 provisions across 2 enactments
Ram Prasad Yadav
The State of Bihar
Ajay Kumar Yadav
Alok Kumar Pandey
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
