Patna High Court
Lalti Devi vs The State Of Bihar on 24 February, 2025
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.962 of 2024
Arising Out of PS. Case No.-32 Year-2021 Thana- CHANDI District- Nalanda
======================================================
Lalti Devi, aged about 66 years, Female, Wife of Chandrashekhar Prasad,
Resident Of Village - Jamalpur, Police Station - Tharthari, District - Nalanda
... ... Appellant
Versus
1. The State of Bihar
2. Sudhir Prasad @ Ramkrishna Kumar, aged about 50 years, (male), Son Of
Late Dularchand Mahto, Resident Of Village - Amraura, Police Station-
Chandi, District - Nalanda
... ... Respondents
======================================================
Appearance:
For the Appellant/s : Mr. Ajay Mukherjee, Advocate
For the State : Mr. Parmeshwar Mehta, APP
For the Respondent/s : Mr. Shyamal Prakash, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE RAMESH CHAND MALVIYA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAMESH CHAND MALVIYA)
Date: 24-02-2025
Heard Mr. Ajay Mukherjee, learned counsel for
the appellant, Mr. Shyamal Prakash, learned counsel for the
respondent and Mr. Parmeshwar Mehta, learned APP for the
State.
2. The present appeal has been filed against the
judgment and order of acquittal dated 23.02.2024 passed by
learned Additional Sessions Judge-I, Hilsa (Nalanda) in
Sessions Trial No. 441 of 2021/Reg. No. 137 of 2021 arising
out of Chandi P.S. case No. 32 of 2021 whereby and where-
under the learned trial Court acquitted the respondent no. 2
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from charges under Sections 302/120 (B) Indian Penal Code
(hereinafter referred as 'IPC'). The appellant is the informant
and PW- 5 of this case.
Prosecution Case
3. That the prosecution case in short is that an
F.I.R. was lodged on the basis of written report of the informant
namely Lalti Devi (PW-5). It was alleged by the informant in
the F.I.R. that her daughter, Chanchal Kumari (deceased) was
married to one Sudhir Prasad (Respondent no. 2) about 19 years
ago from date of occurrence. She further alleged that her
daughter along with her husband and mother-in-law
Shyamsundari Devi used to reside in a rented premise in
Chandi. Right from the beginning, Sudhir Prasad did not treat
her as his wife and he along with deceased's sister-in-law Anju
Devi and Anju Devi's mother Rajkumari Devi @ Rajjo Devi
used to misbehave with the informant's daughter. Despite
several confrontations they used to misbehave and torture her.
The informant further alleged that Sudhir Prasad had an illicit
relationship with his sister-in-law Anju Devi and this was
protested by the deceased. It was further alleged that on
21.01.2021
around 5 o’ clock in the morning, the informant got
information that her daughter was killed by her in-laws. The
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informant went there and found her daughter, Chanchal
Kumari’s dead body lying over bed with severe injuries over
face and blood oozing out from her mouth. Chanchal used to
keep her sister’s four years old daughter with her but the child
was not found at the place of occurrence. The informant
suspected involvement of Sudhir Prasad, Anju Devi and
Rajkumari Devi in causing death of Chanchal Kumari by
strangulation and named them in the FIR.
4. On the basis of above written statement of the
informant (PW-5) Chandi P. S. case No. 32 of 2021 was
registered under Sections 302/120(B) of the Indian Penal Code
and after investigation the Investigating Officer submitted the
charge-sheet against accused/respondent no. 2 and others on
10.04.2021 under Sections 302/120(B) of Indian Penal Code.
The Additional Judicial Magistrate-I took cognizance of the case
on 17.06.2021 and thereafter the case was committed to the
court of Sessions for trial.
Analysis of Prosecution Witnesses:
5. On behalf of the prosecution, altogether seven
witnesses were examined and several documents were exhibited
during the course of trial. The statement of the accused has been
recorded under Section 313 of the Cr.P.C in which they have
Patna High Court CR. APP (DB) No.962 of 2024 dt.24-02-2025
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of innocence. The list of the prosecution witnesses as well as the
documents exhibited on behalf of the prosecution are being
shown here-under in a tabular form:-
List of Prosecution Witnesses:
PW-1 Sarvesh Kumar
PW-2 Suman Kumari
PW-3 Mahajani Devi
PW-4 Pankaj Kumar
PW-5 Lalti Devi
PW-6 Chandra Uday Prakash
PW-7 Sanjiv KumarList of Exhibits by Prosecution
Exhibit-1 FIR
Exhibit-2 Signature of the informant
Exhibit-3 Sections mentioned in the
written application
Exhibit-4 Formal FIR
Exhibit-5 Charge-sheet
Exhibit-7 Postmortem report
6. PW-1 Sarvesh Kumar, brother of the deceased
in his examination-in-chief has stated that his sister and
respondent no. 2 Sudhir Kumar did not have good relations.
Sudhir Kumar had an illicit relationship with his sister-in-law,
Anju Devi. He further stated that respondent no. 2 used to beat
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his deceased sister and that his sister had reported the same in
the Mahila Thana.
7. PW-2 Suman Kumari is the owner of the
house where the deceased and the accused-respondent used to
live in Chandi. However, she has been declared hostile by the
prosecution. Similarly, PW-3 and PW-4 have stated that they did
not have any information about the alleged occurrence and were
thus declared hostile.
8. PW-5 Lalti Devi is the informant in the present
case. She is the mother of the deceased woman Chanchal
Kumari. In her examination-in-chief she stated that the
occurrence took place on 21.01.2021. When she reached her
daughter’s home in Chandi village she saw her lying dead and
she had injuries on her face and there was blood oozing out of
her mouth. She further alleged that her daughter was killed by
her husband Sudhir Kumar (respondent no. 2), Anju Devi, who
was her daughter’s sister-in-law and Rajkumari Devi @ Rajjo
Devi, who was Anju Devi’s mother. They used to regularly
assault her. The informant further stated that respondent no. 2
Sudhir Kumar had an illicit relationship with his sister-in-law
Anju Devi and this was protested by her daughter and hence he
used to physically assault her. PW-5 stated that her daughter
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used to inform her about this on the phone. She further stated
that the deceased did not have a child of her own but she used to
stay with her niece Suhana. PW-5 stated that on the day of
occurrence Suhana was there in the house but the accused-
respondent had thrown her out of the house.
8.i. In Para-7 of her cross-examination, PW-5 has
stated that she does not remember the date and time of the
alleged occurrence. She further stated that she got the
information of her daughter’s death from one Arvind Prasad
who used to live in her village. In Para-9 she stated that Arvind
Prasad was not made a witness in the instant case. Arvind
Prasad got the information of Chanchal Kumari’s death from his
relatives who used to live in Chandi village.
8.ii. In Para-10 of her cross-examination, she
stated that when she reached her daughter’s home, the police
were already there and she did not know who informed the
police about the occurrence. The police had got the information
verbally. In Para-12 she stated that the police took her thumb
impression on a blank page and in Para-17 she further stated
that her daughter did not commit suicide but rather her death
was homicidal.
9. PW-6 is Chandrauday Prakash who was the
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Investigating Officer in the instant case. He stated in his
examination-in-chief that on 21.01.2021 he was posted as Sub
Inspector at Chandi P. S. and on that day the informant gave a
written application alleging the murder of her daughter and on
the basis of this written application, an FIR was registered. He
further stated that the inquest report of the deceased was
prepared by Shyamsundari Devi, Sub Inspector Chandi. In Para-
5 of his examination-in-chief he stated that he arrested the
accused person namely Sudhir Kumar who was present at the
place of occurrence. He further stated that he investigated the
place of occurrence on the date of occurrence itself. The dead
body of the deceased was found on a bed at the second floor of
her house where she used to live with her husband and mother-
in-law. The house was situated at a distance of 500m east from
the Chandi P. S. The house belonged to one Surendra Prasad. In
Para-15 of his examination-in-chief he stated that the
postmortem report of the deceased was noted in the case diary
on 07.02.2021. In Para-17 he stated that the Sub-Divisional
Police Officer, Hilsa believed the alleged occurrence to be true
and in Para-19 he stated that the Superintendent of the Police,
Nalanda also believed that the incident was true.
9.i. In Para-26 of his cross-examination he stated
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that a clear postmortem report was not received by the police. In
Para-27 he stated that they did not find any marks of violence at
the place of occurrence and the bed where the dead body was
found was not in an unkempt condition. In Para-31 he stated that
he did not record the statement of any eye-witness in the instant
case. He further stated that he did not record the statement of
any person who lived nearby the deceased and accused and he
did not record the reasons for omitting to do so. In Para-33 he
further stated that he did not investigate about the cause of the
occurrence. He did not investigate on the allegation of the
informant that the accused used to physically assault the
deceased. In Para-35 he further stated that the deceased used to
live with her niece but the police did not record the statement of
the niece and he did not record the reasons for not doing so. In
Para-37 he stated that he did not submit the viscera report and
that he could not say what was the cause of the death.
10. PW-7 Sanjeev Kumar is the Medical Officer
in the instant case. He stated in his examination-in-chief that on
21.01.2021 he was posted as Medical Officer at the Sadar
Hospital, Biharsharif. On that day he along with one Dr.
Mahendra Kumar did the examination of the dead body of
Chanchal Kumari. The examination revealed as follows:
Patna High Court CR. APP (DB) No.962 of 2024 dt.24-02-2025
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discharge from mouth and nose. Bruise
mark below right lower eye lid and over
lateral aspect of left eye blow.
On Dissection- Head- skull bone intact.
Brain congested.
Neck- NAD.
Thorax- Ribs- Intact, Lungs- Intact and
congested.
Heart- Both chamber full with blood.
Abdomen- Stomach- Digested food material
present. Other viscera organs are intact and
congested.
U. Bladder – Empty.
Uterus – Small.
Viscera was preserved and opinion reserved
till chemical report from FSL Patna
available. Time elapsed since death within
06 to 36 hours.
This Postmortem. report has typed by Data
Entry Operator Aatish Kumar on dictation
of Dr. Mahendra Kumar and me. The
Signature of Mahendra Kumar and me is on
Postmortem report.
10.i. In Para-2 of his cross-examination he stated
that he did not give a clear opinion as to whether the death of
Chanchal Kumari was homicidal or suicidal. He further stated
that he did not get any findings with respect to the viscera
report. In Para-6 he stated that during the postmortem there was
no tape-recording of the findings.
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Findings of the Trial Court:
11. The learned trial Court after analyzing the
evidences on the record found that out of the seven witnesses
none of them were an eye-witness to the alleged occurrence.
Further, PW-2, PW-3 and PW- 4 have been declared hostile by
the prosecution as they stated that they denied having any
information about the alleged occurrence. PW-1 Sarvesh Kumar
supported the incident in his examination-in-chief but in cross-
examination he said that he did not see the incident taking place.
PW-2 Suman Kumari is also not an eye witness of the incident,
because Shyamsundari Devi came to her to tell her that
Chanchal Kumari has died. Similarly, PW-4 Pankaj Kumar
stated that he came to know on the next day of the incident that
Chanchal Kumari is dead. PW-5 Lalti Devi, who is herself the
complainant in this case, has supported the incident in her sworn
statement. She stated that on reaching the place of occurrence
she saw her daughter was lying dead but she was not an eye-
witness to the alleged occurrence.
11.i. She further stated that she filed the case on
the basis of suspicion. Thus, based on the statements of the
prosecution witnesses, the allegations leveled against the
accused seemed doubtful. No eyewitness has been testified in
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the entire investigation. No investigation or reason has been
written on the point of the cause of murder. Thus, the cause of
death has not been clear even from the evidence of this witness.
11.ii. The trial Court further held that PW-7 who
was the medical officer also did not give any clear opinion on
whether the death of the deceased Chanchal Kumari was
homicidal or suicidal. He did not say in his evidence how the
deceased died. Thus, it is not clear from the evidence of all these
witnesses presented by the prosecution that the deceased died 19
years after her marriage and how she died is not known till date.
The evidence of these witnesses could not prove the place of
incident, time of incident and cause of incident. Therefore, from
the available evidence the trial Court found the case to be true
but the involvement of the accused person in this case appeared
doubtful, since the prosecution failed to prove the allegations
leveled against the accused person beyond all reasonable doubts
and on the basis of available evidence on record, it appeared
appropriate and just to give the benefit of doubts to the accused
and acquit him from the charges leveled against him.
Submissions on behalf of the Appellant:
12. The Learned counsel for the appellant has
assailed the impugned judgment saying that the judgment is
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based on mere conjectures and surmises and is against the
materials available on the record. Learned trial Court failed to
consider and appreciate the prosecution witnesses who have
fully supported the prosecution case. The evidence on record
does not support the finding arrived at.
12.i. Learned counsel for the appellant further
submitted that viscera of the deceased was sent to the Forensic
Science Laboratory (referred to as ‘FSL’) and FSL report had
been received, but the trial Court delivered its judgment without
considering the FSL report. He further submitted that the trial
Court did not carefully examine the statements of the ocular
witnesses who saw the injured face of the deceased and the
bruise marks on the accused-respondent’s face. The learned
counsel further submitted that some indispensable witnesses
were not brought on record by the police and neither did the trial
Court summon them. Dr. Mahendra Prasad who was a member
of the medical board who has prepared the postmortem report
and Dr. Anil Kumar who prepared the injury investigation report
of the accused/respondent no. 2 were not summoned by the trial
Court.
12.ii. The learned counsel further submitted that
in the absence of eye-witnesses to the alleged occurrence, these
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witnesses could have explained the cause of death of the
deceased. He further submitted that the occurrence took place
on 21.01.2021 and the FIR was registered on the same day. As
per Para-3 of the case diary, the police noted that when they
reached at the place of occurrence they found the deceased lying
dead on the bed and there were injury marks on her face. The
accused-respondent tried to hide the body of the deceased and
the police apprehended him on the place of occurrence itself.
Despite this the trial Court did not carefully examine any
witnesses in order to ascertain the true chain of circumstances
which led to the death of the deceased.
12.iii. Learned counsel further submitted that the
trial Court did not ask the accused any questions with respect to
the wounds on his face. PW-2 and PW-3 were neighbors of the
deceased and they had seen the accused-respondent next to the
deceased’s dead body. He further submitted that in their
statement to the police they described that the marks on the
accused/respondent’s face seemed like scratches caused by
finger nails. They also stated before the police that there were
several injuries on the face of the deceased.
12.iv. Learned counsel next submitted that the
trial Court did not draw the attention of PW-6, the I.O. in the
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present case to Para-11, 23 and 24 of the case diary which
consists of the previous statements of PW-2 and PW-3 where
they described the place of occurrence right after the alleged
occurrence took place. However, on perusal of the statement of
the I.O. recorded by the trial Court we find that the trial Court
failed to take note of the previous statements made by the PW-2
and PW-3. The counsel further submitted that the judgment of
the learned trial Court acquitting respondent no. 2 of the charges
is bad and vitiated by grave illegality which has resulted in
gross miscarriage of justice for the appellant. The trial Court
failed to apply its judicial mind and the judgment was passed in
a mechanical manner and the same is liable to be interfered
with.
12.v. It is submitted that the death had taken
place within the four corners of the house of the appellant, it is
not his case that he was not residing in the said house with the
deceased, in such circumstances Section 106 of the Indian
Evidence Act (now Section 109 Bhartiya Sakshya Adhiniyam
2023) would be attracted.
Submissions on behalf of the Respondent and
State:
13. The learned counsel for respondent no. 2 has
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vehemently opposed the petition of appeal. He has submitted
that the investigating officer and the medical officer could not
ascertain the cause of death of the deceased. There are no eye
witnesses of the alleged occurrence. He next submits that there
is no evidence that points towards the guilt of the
accused/respondent no.2. The trial Court rightly acquitted the
accused respondent no.2 by giving him the benefit of doubt.
13.i. The learned APP for the State contended
that remanding the matter back to the learned Trial Court for de
novo trial would not be in the interest of justice. He next
submits that the trial Court has rightly acquitted the respondent
no. 2 as the prosecution has failed to prove their case beyond all
reasonable doubts, so it would not be a fit case to interfere in the
findings of the trial Court.
Consideration:
14. We have considered the submissions made by
learned counsels appearing for the parties, perused the judgment
impugned in the present appeal and re-appreciated the evidence
on record in the light of grounds taken in the present appeal
preferred against the verdict of acquittal passed by learned trial
Court. The accused-respondent is the husband of the deceased.
Chanchal Kumari, the daughter of informant had died an
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unfortunate death after 18-20 years of her marriage with
respondent no. 2 Sudhir Kumar. This is admitted fact that
deceased and respondent No.2 Sudhir Kumar were married.
15. The prosecution side produced PW-1 Sarvesh
Kumar, who is the brother of the deceased, PW-2 Suman
Kumari is the owner of the house in which the deceased and the
accused lived in Chandi. PW-2, 3 and 4 turned hostile as they
denied having any information about the alleged occurrence.
PW-5 is the informant and mother of the deceased who had
named the accused/respondent in the FIR. PW-6 is the I.O. in
the present case and PW-7 is the Medical Officer who was a
member of the medical board which conducted postmortem
examination on dead body of the deceased on 21.01.2021. He
conducted the postmortem examination along with Dr.
Mahendra Kumar and the postmortem report bears the
signatures of both the doctors. The postmortem report is marked
as Ext. 7.
16. Exhibit-7 which is the postmortem report
clearly states that there were bruise marks below the right lower
eye lid and on the lateral aspect of the left eyebrow, but PW-7,
the medical officer failed to explain the injuries and instead said
that the cause of death could not be ascertained. It is also seen
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that since the cause of death could not be ascertained by the
medical officer, the viscera was preserved till the FSL report
was obtained.
17. The FSL report dated 29.12.2021 was not
exhibited for examination even when the report was available
with the prosecution. It is also observed that the trial Court
failed to summon Dr. Mahendra Prasad who was a part of the
medical board which conducted the postmortem of the
deceased. He was a material witness who could have given
some information on the cause of death of the deceased.
18. The trial Court appears to have committed
serious fallacies in the examination of prosecution witnesses.
The I.O. had found during the investigation that the accused-
respondent had injuries on his face and for this an injury
investigation report was submitted by the Primary Health
Centre, Chandi. The report highlighted the following:
1. Abrasion of 1/2” x 1/8” on his left side
cheek
2. Abrasions of 1/2” x 1/8” on his left side
cheek
3. Abrasion of 1/4” x 1/8” on his left side
cheek.
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4. A lacerated wound 1/4″ x 1/8″ skin deep
on left right finger.
Nature of injury- Simple
Weapons used-Hard & Blunt substance
19. However, the trial Court did not examine Dr.
Anil Kumar, the doctor who prepared this injury report and
neither did the trial Court ask the accused any questions with
respect to these wounds. Also, the trial Court did not undertake
any process or step to procure the presence of Dr. Anil Kumar,
the doctor who prepared the injury report. PW-2 and PW-3 were
neighbors of the deceased and they had seen the accused-
respondent next to the deceased’s dead body. In their statement
to the police they described that the marks on the
accused/respondent’s face seemed like scratches caused by
finger nails. They also stated before the police that there were
several injuries on the face of the deceased. While PW-2 and
PW-3 were declared hostile by the prosecution, we are surprised
that the prosecution/trial Court did not draw the attention of
PW-2 and PW-3 towards their previous statements made before
the police which were recorded in Para 11, 23 and 24 of the case
diary and then the writings in the case diary could not be used to
contradict these witnesses through the I.O. where they described
the place of occurrence right after the alleged occurrence took
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place.
20. Since, in the present case there is no eye-
witnesses, the statements of these witnesses as to circumstances
prevailing right after the occurrence are relevant under Section 7
of the Indian Evidence Act in order to prove the prosecution
case. However, on perusal of the statement of the I.O. recorded
by the trial Court we find that the trial Court was not vigilant to
take note of the previous statements made by the PW-2 and PW-
3.
21. We further note that on questioning by the
trial Court, PW-7 stated in Para-10 of his examination that the
liquefied bloody discharge from the deceased’s mouth and nose
coupled with the bruise marks could be caused by asphyxia and
it was possible that it was a case of smothering. In Para- 11 of
his examination by the trial Court, PW-7 stated that congestion
of lungs and brain was not found in case of death under normal
circumstances. As per the postmortem report however, there was
congestion of the brain and lungs of the deceased. It was
possible that the victim was prevented from inhaling or
breathing through any means. Since the learned trial Court was
questioning the witness in exercise of its powers under Section
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165 of the Indian Evidence Act, we believe that the Court
should have been more vigilant in putting the right questions to
PW-7 in order to ascertain the true cause of the death of the
deceased. This we say because the cause of the death was not
ascertained by the medical officer but the same was not
corroborated by the postmortem report and the questions which
the trial Court put to the doctor indicated a homicidal case.
There was no finding by the trial Court with respect to the cause
of death as mentioned in the postmortem report and the
depositions of the witnesses.
22. The trial Court in exercise of its powers
under Section 313 of Cr.P.C. did not ask the accused-respondent
relevant questions in order to arrive at the final verdict. The
learned trial Judge did not ask him about how he got the injuries
on his face and neither did he ask the accused-respondent how
did his wife die since he was present at the place of occurrence.
23. The proper compliance of Section 313 of
Cr.P.C. has not been done and only a mere mention of Section
313 of Cr.P.C. has been done. Considering the provision of
Section 313 of the Cr.P.C., this provision has a purpose of
empowering the Court to examine the accused to meet the
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requirement of the principle of natural justice and the accused
on the basis of this provision, may be asked to furnish some
explanation as regards the incriminating circumstances
associated against him and the Court must take note of such
explanation. The provision of Section 313 is to establish a direct
dialogue between the Court and the accused and a proper
methodology is to be adopted by the Court for recording the
statement of the accused to by throwing light upon the
incriminating circumstances and evidence and seek an
explanation of the accused person. If the opportunity of
examination under Section 313 is given to the accused, and is
not done in an accurate manner, it may result in imperfect
appreciation of evidence.
24. In Indra Kunwar v. State of Chhattishgarh
reported in 2023 SCC OnLine SC 1364, their Lordships held
that the intent of the provision of Section 313 Cr.P.C is to
establish a dialogue between the Court and the accused. The
process aids the Court in arriving at a final verdict. We note that
in the instant case, there were lapses on the part of prosecution
to establish the cause of death. At the same time we also find
that the trial Court did not exercise its power under Section 313
to put forth the correct set of questions which would help the
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court to arrive at the conclusion as to how the deceased died.
The trial Court was mechanical in its approach in putting
questions to the accused.
25. In Indra Kunwar (supra) the Apex Court
evolved principles to be followed while framing questions under
Section 313 of the Cr.P.C. examination which reads as follows:-
35. On perusal of various judgments
rendered by this Court reveals the following
principles, as evolved overtime when
construing such statements.
35.1. The object, evident from the Section
itself, is to enable the accused to themselves
explain any circumstances appearing in the
evidence against them.
35.2. The intent is to establish a dialogue
between the Court and the accused. The
process benefits of the accused and aids the
Court in arriving at a final verdict.
35.3. The process enshrined is not a matter
of procedural formality but is based on the
cardinal principles of natural justice i.e.
audi alterum partem.
35.4. The ultimate test when concern with
the complaints of the section is to inquire
and ensure whether the accused got the
opportunity to say his piece.
35.5. In such a statement, the accused may
or may not admit involvement or any
incriminating circumstance or may even
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interpretations. The accused may not be put
to prejudice to any omission or
inadequate questioning.
35.6. The right to remain silent or any
answer to question which may be false shall
not be used to his determent being the sole
reason.
35.7. This statement cannot found the sole
basis of conviction and is neither a
substance to or a substitute piece of
evidence. It does not discharge but reduces
the prosecution burden of leading
evidence to prove its case. They are to be
used to examine the veracity of the
prosecution’s case.
35.8. This statement is to be read as a
whole. One part cannot be read in isolation.
35.9. Such a statement, as not on oath, does
not qualify as a piece of evidence under
Section 3 of Indian Evidence Act, 1872,
however, the inculpatory aspect as may be
borne from the statement may be used to
lend credence to the case of the
prosecution.
35.10. The circumstances not put to the
accused while rendering his statement
under Section R to be excluded from
consideration as no opportunity has been
offered to him to explain them.
35.11. The Court is obligated to put, in the
form of questions, all incriminating
circumstances to the accused so as to give
him an opportunity to articulate his
Patna High Court CR. APP (DB) No.962 of 2024 dt.24-02-2025
24/33defense. The defense so articulated must be
carefully scrutinized and considered.
35.12. Non-compliance with the section
may cause to the prejudice to the accused
and may impede the process of arriving at a
fair consideration.
(emphasis applied)
26. In Nar Singh v. State of Haryana, (2015) 1
SCC 496, the Hon’ble Supreme Court was considering the
question whether the appellate court can direct a retrial if all the
relevant questions are not put to the accused by the trial court as
required under Section 313 Cr.P.C. The Hon’ble Supreme Court
answered the question in the affirmative, holding that the
appellate court may direct a retrial in such circumstances from
the stage of questioning the accused because non-compliance of
Section 313 Cr.P.C had caused prejudice to the accused:
“30.3. If the appellate court is of the
opinion that non-compliance with the
provisions of Section 313 Cr.P.C has
occasioned or is likely to have occasioned
prejudice to the accused, the appellate
court may direct retrial from the stage of
recording the statements of the accused
from the point where the irregularity
occurred, that is, from the stage of
questioning the accused under Section 313
Cr.P.C and the trial Judge may be directed
to examine the accused afresh and defence
witness, if any, and dispose of the matter
Patna High Court CR. APP (DB) No.962 of 2024 dt.24-02-2025
25/33afresh.”
27. The trial Court failed to summon Dr. Anil
Kumar who was the doctor at the Primary Health Centre,
Chandi as to the injury report which enlisted the injuries on the
face of the accused-respondent. PW-5 stated in her examination-
in-chief that she got the information of her daughter’s death
from one Arvind Prasad. However, the trial Court did not
summon this person as well to examine him. These witnesses
are material witnesses in the present case and the omission to
examine them has resulted in gross injustice to the prosecution.
The trial Court also erred in not examining Dr. Mahendra
Kumar who had prepared the postmortem report as he could
have given information as to the cause of death of the deceased.
The submission of the learned counsel for the
informant/appellant is that the death of Chanchal Kumari was
caused due to smothering of her face by the accused-respondent
is supported by the postmortem report which stated that there
were bruise marks on the deceased’s eyes and by the injury
investigation report which stated that there were abrasion marks
on the accused-respondent’s face as well. It indicates resistance
offered by the deceased right before succumbing to
asphyxiation. The postmortem report (Exhibit-7) also mentions
Patna High Court CR. APP (DB) No.962 of 2024 dt.24-02-2025
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that the brain and lungs of the deceased were congested which
further indicate asphyxia.
28. In light of the facts which appear before us
and the gross negligence shown by the prosecution as well as
the trial Court, we believe that there has been several lapses on
the part of the prosecution in bringing forth the correct chain of
events leading to the death of the deceased and by the trial Court
for not taking steps to reach a final verdict. The unnatural death
of the deceased after 18-20 years of her marriage to the accused-
respondent has not been explained. The medical officer and the
I.O. had failed to ascertain the cause of death especially in light
of the injuries found on the deceased’s face and the accused-
respondent’s face. Further, some indispensable witnesses such
as Dr. Mahendra Prasad and Dr. Anil Kumar, who examined the
accused-respondent have not been summoned by the trial Court
to record their statements.
29. In a recent judgment in the case of Nasib
Singh v. State of Punjab, (2022) 2 SCC 89 the Apex Court held
as follows:
The principles that emerge from the
decisions of this Court on retrial can be
Patna High Court CR. APP (DB) No.962 of 2024 dt.24-02-2025
27/33formulated as under:
(i) The Appellate Court may direct a retrial
only in ‘exceptional’ circumstances to avert
a miscarriage of justice;
(ii) Mere lapses in the investigation are not
sufficient to warrant a direction for retrial.
Only if the lapses are so grave so as to
prejudice the rights of the parties, can a
retrial be directed;
(iii)A determination of whether a ‘shoddy’
investigation/trial has prejudiced the party,
must be based on the facts of each case
pursuant to a thorough reading of the
evidence;
(iv)It is not sufficient if the accused/
prosecution makes a facial argument that
there has been a miscarriage of justice
warranting a retrial. It is incumbent on the
Appellant Court directing a retrial to
provide a reasoned order on the nature of
the miscarriage of justice caused with
reference to the evidence and investigatory
process;
(v) If a matter is directed for re-trial, the
evidence and record of the previous trial is
completely wiped out; and
(vi) The following are some instances, not
intended to be exhaustive, of when the
Court could order a retrial on the ground of
miscarriage of justice:
a) The trial court has proceeded with the
trial in the absence of jurisdiction; b) The
trial has been vitiated by an illegality or
irregularity based on a misconception of
Patna High Court CR. APP (DB) No.962 of 2024 dt.24-02-2025
28/33the nature of the proceedings; and c) The
prosecutor has been disabled or prevented
from adducing evidence as regards the
nature of the charge, resulting in the trial
being rendered a farce, sham or charade.
30. In the case of Issac v. Ronald Cheriyan,
(2018) 2 SCC 278 the Hon’ble Supreme Court held that:
“14. In appeal against acquittal, in
exceptional circumstances, the High Court
may set aside the order of acquittal even at
the instance of private parties, though the
State may not have thought it fit for appeal.
But it is to be emphasised that this
jurisdiction is to be exercised only in
exceptional circumstances when there is
glaring defect in the conduct of trial which
has materially affected the trial or caused
prejudice. In the present case… The High
Court further observed that the fingerprint
expert who prepared Ext. P-8 ought to have
been examined and other circumstances
emerging out of evidence ought to have
been examined by the trial court. The High
Court further observed that because of the
omission to frame the charges under
Section 34 IPC, in spite of framing the issue
of common intention, the trial court has not
examined the evidence in proper
perspective, which according to the High
Court has materially affected the trial
which is called for retrial. The discretion
exercised by the High Court under Section
386(a) Cr.P.C directing retrial with certain
directions cannot be said to be erroneous
warranting interference.”
Patna High Court CR. APP (DB) No.962 of 2024 dt.24-02-2025
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31. In the case of Ajay Kumar Ghoshal v. State
of Bihar, (2017) 12 SCC 699, the Hon’ble Supreme Court had
stated that:
“Though the word “retrial” is used under
Section 386(b)(i) CrPC, the powers
conferred by this clause is to be exercised
only in exceptional cases, where the
appellate court is satisfied that the omission
or irregularity has occasioned in failure of
justice. The circumstances that should exist
for warranting a retrial must be such that
where the trial was undertaken by the court
having no jurisdiction, or trial was vitiated
by serious illegality or irregularity on
account of the misconception of nature of
proceedings. An order for retrial may be
passed in cases where the original trial has
not been satisfactory for some particular
reasons such as wrong admission or wrong
rejection of evidences or the court refused
to hear certain witnesses who were
supposed to be heard.”
32. At the outset, it would be imperative to
mention 427(a) of the Bharatiya Nagrik Suraksha Sanhita, 2023
(Section 386 (a) Cr.P.C, since repealed) which reads as under:
“427. After perusing such record and
hearing the appellant or his advocate, if he
appears, and the Public Prosecutor if he
appears, and in case of an appeal under
section 418 or section 419, the accused, if
he appears, the Appellate Court may, if it
considers that there is no sufficient ground
Patna High Court CR. APP (DB) No.962 of 2024 dt.24-02-2025
30/33for interfering, dismiss the appeal, or may
—
(a) in an appeal from an order or acquittal,
reverse such order and direct that further
inquiry be made, or that the accused be re-
tried or committed for trial, as the case may
be, or find him guilty and pass sentence on
him according to law;”
In light of the powers conferred on the appellate
court under Section 427(a) of the Bharatiya Nagrik Suraksha
Sanhita, 2023 we now come to the merits of the present case.
33. In the instant case, we find that the trial Court
did not examine some indispensable witnesses who could have
helped the Court in arriving at the conclusion as to the
occurrence of the death of the deceased. We note that the failure
to issue summons to the important witnesses and their non-
examination by the Court has seriously impaired the right of the
appellant to arrive at the truth of her daughter’s unnatural death.
Despite their being ocular evidences of injury marks on both the
deceased and the accused-respondent the trial Court turned a
blind eye to the same and also failed to ascertain the cause of
death. Further, the trial Court should have drawn the attention of
the I.O. to the statements made by PW-2, 3 and 4 before the
police for contradicting his statement made in Para-27 of his
cross-examination that there were no marks of violence at the
Patna High Court CR. APP (DB) No.962 of 2024 dt.24-02-2025
31/33
place of occurrence. The entire trial was conducted in a
mechanical manner and the trial Judge did not apply his
judicious mind to ask the right questions to the witnesses and
the accused. Although the trial Court is not duty-bound to ask
questions to the witnesses, when it does ask, it should ask the
right questions which could help in ascertaining the correct
chain of circumstances.
34. We note that there have been serious lapses
in the trial of the accused/respondent no. 2. These lapses have
resulted in miscarriage of justice for the appellant as she has
been devoid of the knowledge as to how her daughter was
killed. The gravity of injustice is evident from the ocular and
documentary evidences indicating that there was injuries on the
face of the deceased below the right eyelid and on the lateral
aspect on the left eyebrow. Further there were injuries of
abrasions on the face of the deceased. The accused-respondent
was found next to the dead body by the police and people living
nearby. Three important witnesses were also not summoned by
the trial Court and not even brought on record by the I.O. The
callous and mechanical approach of the trial Court in not
applying its judicial mind to the present case make it one of the
rarest cases which we believe should be remanded back for trial.
Patna High Court CR. APP (DB) No.962 of 2024 dt.24-02-2025
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The cause of the death has not been ascertained by the
prosecution or by the trial Court and thus the appellant is left to
the mercy of the Court to get justice. Thus, we are of the view
that this case is a fit case for ordering a retrial.
35. We, therefore, have no hesitation in setting
aside the judgment and order dated 23.02.2024 passed by the
learned Additional Sessions Judge-1, Hilsa (Nalanda) in
Sessions Trial No. 441 of 2021 arising out of Chandi P.S. Case
No. 32 of 2021 against the appellant and directing for a de novo
trial. The impugned judgment and order are accordingly set
aside.
36. The respondent no. 2 is directed to surrender
before the trial Court within four weeks from the date of this
order, failing which the learned trial Court below shall take
coercive steps to procure his appearance and the Superintendent
of Police, Nalanda shall execute the order of the learned trial
Court without any delay. The trial Court is directed to conclude
the trial expediently after the procurement of attendance of the
respondent no.2. In case of surrender within the prescribed
period as mentioned above, the learned trial Court shall release
the respondent no. 2 on furnishing bail bond to the satisfaction
Patna High Court CR. APP (DB) No.962 of 2024 dt.24-02-2025
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of the learned trial Court.
37. Let a copy of the judgment be communicated
to the learned trial Court and the records of the trial Court be
sent back.
(Rajeev Ranjan Prasad, J)
( Ramesh Chand Malviya, J)
Brajesh Kumar/-
AFR/NAFR AFR CAV DATE N/A Uploading Date 03.03.2025 Transmission Date 03.03.2025
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