One of my clients recently had a case which I am explaining below and if you are stuck in such similar situation, here is what to do.
Note: Due to attorney-client privilege, I cannot disclose complete case details or identify the actual parties involved. However, I am sharing the essential facts and legal approach so that if you find yourself in a similar situation, you can understand the available solutions and legal remedies.
Rohan Tiwari, a young man from a small village near Gorakhpur, Uttar Pradesh, had walked straight into a nightmare he never saw coming. He and two acquaintances, Deepak and Manish, used to visit a nearby riverbank late at night to catch fish, which they sold at the local market — a routine they'd kept up for nearly three weeks. On the night of 18 March 2025, the three of them were alone at the riverbank, since everyone else from the village had gone to attend a wedding in a neighbouring district.
That night changed everything. A group of unknown men arrived and attacked Manish. They told Rohan and Deepak to flee. Rohan ran, managed to escape, and immediately informed Manish's family about what had happened. Manish didn't survive. Police took Rohan into custody within days. Deepak, however, had gone into hiding. And here's where things got considerably worse: Deepak, apparently under pressure from someone, released a video from his location pointing blame squarely at Rohan.
Manish's family alleged that the three boys had lured the victim to the river deliberately. Rohan had no criminal record whatsoever. His family had initially approached a local advocate in Gorakhpur whose work hadn't moved the case forward at all. They then reached out to Advocate Sudhir Rao. A structured approach — securing bail, challenging the video statement's evidentiary value, and building alibi evidence around the wedding attendance — brought meaningful progress. The matter is being contested with a clear legal strategy grounded in the specific procedures that serious criminal cases demand.
Advice in Such Cases
Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation to come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.
Do not speak to the police without counsel present: Anything said to investigators, even informally, can be used to build a narrative against the accused. Insist on having your advocate present before answering any questions.
Preserve all circumstantial evidence immediately: Photographs, call records, witness accounts from those at the wedding that night, and any video footage from nearby areas must be secured without delay. Evidence degrades fast in such cases. Frankly, most families lose critical days simply because nobody told them this early enough.
Engage an advocate with domain-specific criminal trial experience: Murder and culpable homicide matters involve specific procedural and evidentiary strategies — bail arguments, charge framing, Section 193 BNSS compliance, and cross-examination of hostile witnesses — that a general practitioner may not handle with the same precision. Someone who regularly appears in Sessions Court and High Court in serious criminal matters will make better-informed calls at the stages that actually matter.
Applicable Sections of Law
- Section 103 BNS (Bharatiya Nyaya Sanhita): Deals with the offence of murder. Prescribes punishment of death or imprisonment for life along with a fine.
- Section 3(5) BNS: Addresses criminal acts done in furtherance of common intention — frequently invoked when multiple accused are present at the scene, even if only one committed the act.
- Section 238 BNSS: Governs the procedure for supply of copies of police report and documents to the accused before the commencement of trial in a Sessions case.
- Section 193 BNSS: Governs cognizance of offences by Sessions Court and the role of committal proceedings — critical in murder trials where the Magistrate commits the case to Sessions.
Punishment and Penalties
- Offence: Murder under Section 103 BNS
- Minimum Punishment: Imprisonment for life with fine
- Maximum Punishment: Death penalty in the rarest of rare cases (as established in Bachan Singh v. State of Punjab, 1980)
- Nature of Offence: Cognizable and non-bailable
- Compoundable: No — murder is a non-compoundable offence and cannot be settled between parties privately
- Fine: At the court's discretion, in addition to imprisonment
Jurisdiction — Where to File the Case
Murder cases under Section 103 BNS are exclusively triable by the Court of Sessions. Territorial jurisdiction lies with the Sessions Court in the district where the offence occurred — in this matter, the Sessions Court having jurisdiction over the area near Gorakhpur. The FIR is registered at the police station within whose jurisdiction the riverbank falls. Now, before you act, understand this: jurisdiction isn't a formality. Any application — bail, discharge, or quashing — must be filed in the correct court. A Sessions Court application filed in the wrong district can be dismissed on technical grounds, causing serious and often irreversible delay.
What if Police Refuse to File FIR?
In cases like this, the FIR is usually already registered. But if the police refuse to register a complaint in a related matter — say, a counter-complaint against the absconding witness for making a false statement — the following steps apply:
- Submit a written complaint to the Superintendent of Police under Section 173(4) BNSS requesting registration of FIR.
- If SP does not act, file a private complaint before the Judicial Magistrate under Section 175(3) BNSS.
- The Magistrate can direct the police to investigate and submit a report.
- As a last resort, approach the High Court by way of a writ petition under Article 226 of the Constitution of India, as upheld in Lalita Kumari v. Government of Uttar Pradesh, 2014.
Rights of the Accused
- Right against self-incrimination: Under Article 20(3) of the Constitution, no person accused of an offence can be compelled to be a witness against himself. Rohan cannot be forced to confess.
- Right to legal representation: Article 22(1) guarantees the right to consult and be defended by a legal practitioner of one's choice. This right attaches from the moment of arrest.
- Right to be produced before Magistrate within 24 hours: Under Section 57 BNSS (formerly Section 57 CrPC), the police cannot detain an arrested person beyond 24 hours without a Magistrate's order.
- Right to know grounds of arrest: Section 47 BNSS requires the police to communicate the grounds of arrest to the arrested person.
- Right to a copy of the FIR: The accused is entitled to receive a copy of the FIR free of cost at the earliest opportunity, as reaffirmed in Youth Bar Association of India v. Union of India, 2016.
Bail Provisions
Murder under Section 103 BNS is a non-bailable offence. Regular bail can be applied for before the Sessions Court under Section 483 BNSS once the accused is in judicial custody. The court considers factors like criminal antecedents, the prima facie strength of the case, risk of tampering with witnesses, and flight risk. Since Rohan has no prior criminal record and was himself the person who reported the crime to the family, these factors can weigh in his favour during bail arguments. If arrest is anticipated for any co-accused or related person, anticipatory bail under Section 482 BNSS can be applied for before the Sessions Court or High Court. Bail conditions typically include surrendering of passport, periodic reporting to the police station, and not leaving the jurisdiction without permission.
Quashing of FIR / Case
The High Court possesses inherent powers under Section 528 BNSS to quash an FIR or criminal proceedings if they amount to an abuse of the process of the court. In a case like Rohan's — where the primary material against him is a video statement from an absconding person made under alleged pressure, and where no independent evidence connects him to the actual offence — a quashing petition can be explored. The Supreme Court, in State of Haryana v. Bhajan Lal, 1992, laid down specific categories where FIRs can be quashed, including cases where the allegations do not prima facie constitute the offence and where continuation would amount to oppression. Quashing isn't guaranteed. But it's a viable strategy when the prosecution material is demonstrably weak at its foundation.
If You Are the Victim
- Register an FIR immediately at the local police station under Section 173 BNSS, clearly describing the accused persons and the sequence of events.
- Insist that the police preserve the scene of crime and collect forensic evidence without delay — delayed scene processing weakens the prosecution case significantly.
- Engage an advocate to monitor the investigation and ensure the chargesheet is complete and accurate before it is filed before the Magistrate.
- If police are not acting diligently, approach the Superintendent of Police in writing and, if needed, move the High Court for a monitored investigation.
- Preserve all communications, witness contact details, and any photographs or video footage from near the scene of offence.
Documents You Must Keep Ready
- Aadhaar card and PAN card of the accused for identity verification
- Copy of the FIR (obtainable from the concerned police station)
- Chargesheet once filed — check it carefully for accuracy and omissions
- Call detail records (CDR) of the accused's phone for the relevant night — these can confirm or contradict presence at the scene
- Witness statements and affidavits from those who attended the wedding that night, establishing why other regular fishermen were absent
- Any video or photographs from the evening — even informal ones from mobile phones
- Medical or forensic reports related to the victim's body
- Past clean records: no-FIR certificate or police verification report showing absence of prior criminal history
What Evidence Is Required?
- Alibi evidence: Witness testimony and photographs establishing that the accused had no prior plan and was present at the river only incidentally — not by arrangement.
- Call Detail Records (CDR): To prove or disprove communication between the accused and any of the assailants before the crime.
- Forensic evidence: Post-mortem report, wound patterns, presence or absence of the accused's biological material at the scene.
- Video statement from absconding witness: This must be challenged on the ground of voluntariness and reliability. A statement made by an absconding person under pressure carries weak evidentiary weight under the Indian Evidence Act as applicable.
- Eyewitness testimony: Any person present near the riverbank who can corroborate the sequence of events.
- Section 161 BNSS statements: Statements recorded by police from all witnesses during investigation — cross-examination on contradictions in these statements is a core defence strategy.
- Prior conduct evidence: The accused's clean criminal record is a relevant factor in both bail hearings and trial.
How the Police Behave in Such Cases
Make no mistake — in murder cases, police face enormous pressure to close the investigation quickly and show arrests. In situations like Rohan's, where the actual perpetrators are unknown, it's not uncommon for the police to build a case against those most accessible, especially when the victim's family is vocal and grieving and demanding answers. Custodial interrogation can be aggressive. The absconding co-accused's video, regardless of how it was obtained, may be given undue weight during the investigation stage. And here's the thing: delays in chargesheet filing can extend custody well beyond what most families anticipate. An advocate's active presence and timely applications are the most effective check on these tendencies during the investigation phase.
Timeline of Legal Process
- FIR Registration: Already done — Day 1
- Arrest and Remand: Police remand followed by judicial remand — first 15 to 30 days
- Bail Application: Filed before Sessions Court — hearing within 1 to 3 weeks of filing
- Investigation and Chargesheet: Police must file chargesheet under Section 193 BNSS within 60 days for offences triable by Sessions Court, extendable to 90 days
- Cognizance by Magistrate and Committal to Sessions: 1 to 3 months after chargesheet
- Framing of Charges by Sessions Court: 2 to 6 months after committal
- Trial — Prosecution Evidence: 6 months to 2 years, depending on number of witnesses
- Defence Evidence and Arguments: 3 to 12 months
- Judgment: 3 to 5 years total from FIR, in a reasonably functioning Sessions Court
- Appeal to High Court: If convicted, appeal filed within 90 days of judgment
How Long Will the Investigation Take?
Under Section 193 BNSS, in offences triable by the Court of Sessions, the police must file the chargesheet within 60 days of arrest. If they fail, the accused becomes entitled to default bail unless the court extends the period to 90 days on a showing of good cause. This deadline is one of the most consequential procedural rights available to an accused in custody, and families often don't know it exists until it's too late to act. Your advocate should