In Munna Yadav & Anr. The State of Bihar (2026), Patna High Court's Division Bench of Justices Chandra Shekhar Jha and Bibek Chaudhuri delivered a 19-page long judgment dated April 24, 2026, wherein, it concluded:"35. In view of aforesaid, we are of the considered view that testimony of PW-4 & PW-7 being interested witness not appears wholly reliable. They are immediate family members of the deceased. Their depositions are full of contradiction creating a doubt qua their presence near to the place of occurrence, and also their claim as an eye witness to the occurrence. 36. Accordingly, both above-named appellants are acquitted from the charges levelled against them, by giving benefit of doubt. 37. Hence, appeal stands allowed. 38. Accordingly, impugned judgment of conviction dated 4th June, 2018 and order of sentence dated 12.06.2018, passed by learned A.D.J., F.T.C.- 1st, Jamui in S. Tr. No. 278/2011 arising out of G.R. No. 169/2011 arising out of Khaira P.S. Case No. 17 of 2011 is hereby set aside. 39. Appellants namely, Munna Yadav and Dilip Yadav are in custody in connection with this case, they are directed to be released forthwith, if not required in any other case. Fine if any paid, be returned to appellants forthwith."
The appeal was preferred under section 374(2) of the Cr.P.C. against the impugned judgment of conviction dated June 4, 2018 and order of sentence dated June 12, 201, whereby and whereunder the two appellants were convicted for the offences punishable under section 302/34 of the Indian Penal Code and ordered to undergo rigorous imprisonment for life.
The prosecution case as per Fard-e-beyan of Manju Devi (informant/PW-7) wife of Late Jageshwar Yadav of village – Mangobandar, P.S. - Khaira, District – Jamui, recorded by the S.I. of Khaira Police Station dated 08.02.2011, that on 07.02.2011 at about 7:00 P.M., the husband of informant (PW-7) had gone to supply the milk in the breakfast-cum-tea shop of one Vinod Rawat, which was situated in Mangobandar Bazar, but her husband did not return to his home. The informant alleged that when she went in search of her husband and was going on road at about 8:00 P.M., then, she saw that near to the house of one Prayag Thakur of village – Nai Tola, the accused persons, who belonged to the same family, namely, Dilip Yadav (appellant no.2) , Munna Yadav (appellant no.1) and Huro Yadav were assaulting her husband by means of
brick and stones and also dragging him by holding Gamchha in his neck. The informant further alleged that on seeing the such condition of her husband, she started raising alarm. Thereafter, all the accused persons fled away leaving the husband of the informant in injured condition at the place of occurrence. She further states that anyhow with the help of her Gotni (PW-3), she taken away the dead body of her husband to their house and informed the family members. The informant alleged that there was land dispute between the accused persons and the deceased husband of the informant and due to this reason her husband was murdered by the aforesaid accused persons/appellants.
On the basis of said written information, Khaira P.S. Case was registered for the offences punishable under sections 302/34 of the Indian Penal Code. After concluding investigation, police submitted charge-sheet against the appellants. The jurisdictional Magistrate after perusal of materials and records took cognizance accordingly and after compliance of section 207 of the Cr.P.C. committed this case to the court of sessions under section 209 of the Cr.P.C. for its trial and disposal.
After commitment, learned trial court, upon perusal of records, framed charges against accused persons/appellants under section 302/34 of the IPC and explained the charges to the accused/appellants in their vernacular language, which they pleaded “not guilty” and claimed to be tried. To substantiate its case, prosecution altogether examined seven witnesses
Justice Jha observed: "The missing links could have been provided by the Investigating Officer who, again, did not enter the witness box. Whether or not non-examination of a witness has caused prejudice to the defence is essentially a question of fact and an inference is required to be drawn having regard to the facts and circumstances obtaining in each case. The reason why the Investigating Officer could not depose as a witness, as told by PW-4, is that he had been sent for training. It was not shown that the Investigating Officer under no circumstances could have left the course for recording of his deposition in the trial court. It is worthy of being noted that neither the trial court nor the High Court considered the issue of non-examination of the Investigating Officer. In the facts of the present case, particularly conspicuous gaps in the prosecution case and the evidence of PW-2 and PW-3 not being wholly reliable, this Court holds the present case as one where examination of the Investigating Officer was vital since he could have adduced the expected evidence. His non-examination creates a material lacuna in the effort of the prosecution to nail the appellants, thereby creating reasonable doubt in the prosecution case."
Notably, by its order dated July 26, 2023, the High Court's Division Bench of Justices Arvind Srivastava and Sunil Dutta Mishra had declined to grant the privilege of bail to the appellants. Their prayer for bail was rejected by Justice Srivastava who had authored the order. The appellants had prayed for suspension of sentence and grant of bail during the pendency of appeal. Their prayer for bail was earlier rejected by the Court's Division Bench of Justices Rakesh Kumar and Arvind Srivastava by its order dated October 3, 2018. The order was authored by Justice Kumar. The appellants were languishing in custody since June 4, 2018.
The judgement reads:" In the facts of the present case, particularly conspicuous gaps in the prosecution case and the evidence of PW 2 and PW 3 not being wholly reliable, this Court holds the present case as one where examination of the investigating officer was vital since he could have adduced the expected evidence. His non-examination creates a material lacuna in the effort of the prosecution to nail the appellants, thereby creating reasonable doubt in the prosecution case.”
Is it not noteworthy that both Justice Kumar and Justice Srivastava erred like Additional District Judge, Jamui in not considering the issue of non-examination of the Investigating Officer? Is it not because of S.K. Lal, the senior advocate that the Court could detect the issue of non-examination of the Investigating Officer?
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