Patna High Court
Santosh Kumar Singh vs State Of Bihar on 6 February, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.154 of 2004
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Santosh Kumar Singh S/o Late Akraj Singh, R/o Village Kesaria Tola, P.S.
Kesaria, District-East Champaran.
... ... Appellant/s
Versus
State of Bihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Shakti Suman Kumar, Adv.
: Ms. Maria Nazir, Adv.
For the Respondent/s : Mrs. Anita Kumari Singh, APP
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CORAM: HONOURABLE JUSTICE SMT. G. ANUPAMA CHAKRAVARTHY
ORAL JUDGMENT
Date : 06-02-2025
1. The Criminal appeal is arising out of the
judgment in Sessions Trial No. 324/1995 vide
judgment dated 23.02.2004 and order dated
25.02.2004 for the offences punishable under
Sections 364 r/w 34, 379 r/w 34 and 120B r/w 34 of
IPC and the appellant/ Santosh Kumar Singh was
sentenced to undergo rigorous imprisonment for a
period of seven years and to pay a fine of Rs. 5000/-
(Five Thousands Only) for the offence punishable
under Section 364 r/w 34 of IPC and further
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sentenced to rigorous imprisonment for one year for
the offence punishable under section 379 r/w 34 of
IPC. However, no separate sentence was passed for
the offence punishable under Section 120-B r/w 34 of
IPC, despite the trial Court finding him guilty.
Furthermore, the trial Court directed that in default
of payment of fine, the appellant shall undergo
rigorous imprisonment for another one year.
2. There are two accused before the trial
Court namely appellant Santosh Kumar Singh and
one Suresh Pandey. The trial Court acquitted Suresh
Kumar Pandey of all the offences charged against
him.
3. Heard Ms. Maria Nazir, the Learned
counsel for the appellant as well as Mrs. Anita
Kumari Singh, the Learned Additional Public
Prosecutor for the State.
4. The Learned Counsel for the appellant
contended that despite the absence of material
evidence, the trial Court convicted the appellant,
which is liable to be set aside. She also contended
that the Court cannot convict one accused while
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acquitting the other based on the same facts and
circumstances of the case. She further contended
that the non-examination of the Investigating Officer
creates a material lacuna in the prosecution's case,
leading to a reasonable doubt. She further
contended that neither common intention nor
criminal conspiracy can be established, if one of the
accused has been acquitted and, thus, convicting the
appellant for the offence punishable under Sections
120-B r/w 34 of IPC is unsustainable. As if the co-
accused has been acquitted of conspiracy and
common intention charges, and that the appellant
alone cannot be held guilty.
5. Moreover, the Learned counsel for the
appellant also relied upon the judgments of the Apex
Court which are as follows:-
(I). Yogarani vs. State represented by
Inspector of Police, reported in 2024 SCC OnLine
SC 2609.
(II). Javed Shaukat Ali Qureshi v. State
of Gujarat reported in (2023) 9 SCC 164
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(III). Ghanshyam Gene Vs. State of
Orisa reported in 2003 Cri. LJ, 4794.
(iV). Munna Lal Vs. the State of UP
reported in (2023) 3 SCR 224.
6. On the other hand, the Learned Additional
Public Prosecutor for the State contended that the
prosecution witnesses, P.Ws. 1 to 2 admitted that the
appellant had taken the P.W. 3/ Sunil Kumar along
with him. Therefore, the trial Court was right in
convicting the appellant for the offence punishable
under Section 364 of IPC and, accordingly, prayed to
confirm the judgment of the trial Court.
7. The case of the prosecution, as per the
fardbeyan, is that on 06.10.1994 at about 01:00 P.M.,
the appellant/Ashok Kumar Singh took away P.W. 3/
Sunil Kumar, i.e. the son of the informant/ P.W. 1/
Ram Naresh Prashad, from the informant's house on
the pretext of purchasing a motorcycle. However,
P.W. 3 did not return home. Further on 07.10.1994, a
relative of the Chaukidar namely, Pati Dusadh came
to the village and informed the son of the chaukidar,
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namely, Sheo Nath Paswan, that he had seen a boy
being taken by some persons through the Bandh
(dam) and that the boy was assaulted by them in the
village of Mohmmadpur under Kesaria Police Station.
After receiving this information, P.W. 1, lodged a
report to the Police Station. Basing on the fardbeyan
of the informant, P.S. Case No. 80 of 1994 was
registered against the appellant at Kesaria Police
Station for the offence punishable under Section 364
r/w 34 of IPC. After due investigation, a charge-sheet
was filed against two of the accused namely, the
appellant/Santosh Kumar Singh and one Suresh
Pandey, for the offences punishable under Sections
364, 379 and 120B r/w 34 of IPC.
8. On 05.06.1995, cognizance was taken and
later, the matter was committed to the Sessions
Court for trial. On 20.07.1995, the Court of Sessions
transferred the case to the Additional District and
Sessions Judge "Fast Track Court No. 4", East
Champaran, Motihari for conducting trial.
9. On 18.08.1998, charges were framed
against the appellant and Suresh Pandey for the
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offences punishable under Sections 364 r/w 34, 379
r/w 34 and 120B r/w 34 of IPC. The charges were
read over and explained to both of them to which
they pleaded not guilty and claimed to be tried.
10. During the course of trial, P.Ws. 1 to 7
were examined and Exhibits 1 to 3 were marked on
behalf of the prosecution, which are as follows:-
Prosecution Witness No. Prosecution Witness Name
P.W. 1 Ram Naresh Prasad
P.W. 2 Kailash Prasad
P.W. 3 Sunil Kumar
P.W. 4 Raj Bansi Devi
P.W. 5 Bhola Prasad
P.W. 6 Ramnath Prasad
P.W. 7 Kailash Sahni
Sl. No Exhibit Exhibit Details
1. Exhibit-1 Signature of Kamlesh
Prasad in FIR
2. Exhibit-2 Signature of Sunil Kumar
statement under section
164
3. Exhibit-3 Fardbeyan (entire) under
Section 294 Cr.P.C.
11. Upon completion of the trial, the accused
persons were examined under Section 313 of the
Cr.P.C. regarding the incriminating material evidence
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found against them and they denied the evidence of
prosecution. However, the trial Court convicted the
appellant for the aforesaid charges and acquitted
Suresh Pandey.
12. The points for determination in this
appeal are as follows:- (i). Whether the prosecution
was able to prove the guilt of the appellant for the
offences punishable under Section 364 r/w 34,
Section 379 r/w 34 and under Section 120-B r/w 34
beyond a reasonable doubt ?
(ii). Whether the trial Court rightly convicted
the appellant for the aforesaid offences?
13. In order to determine the aforesaid
points, it is just necessary to re-appreciate the entire
evidence on record.
14. P.W. 1/ Ramnaresh Prasad is the brother
of the victim boy/ P.W. 3 and also the son of the
informant. His evidence disclose that three years ago
at about 01:00 P.M. when he was at a shop, the
appellant Santosh Kumar Singh took his brother P.W.
3/ Sunil Kumar to Sundarpur on his bicycle. Further
the appellant dropped his brother at Sundarpur, from
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where his brother returned. He further testified that
the appellant handed over his brother to some
criminals.
15. In the cross examination, he testified
that P.W. 3 and the appellant studied in the same
school and had passed out together. On the date of
incident, neither of them were studying at the
school. He also stated that there were no prior
disputes between them. Further, he admitted that he
did not inform the police that the appellant had
taken his brother to Sundarpur and that he did not
witness the criminals. He further testified that he
later came to know that his brother had been handed
over to criminals and that even prior to the incident,
the appellant used to take his brother on a bicycle
and bring him back.
16. The evidence of P.W. 1 cannot be given
much importance as he did not witnessed the
incident and his evidence is a hearsay.
17. P.W. 2/ Kailash Prasad is the father of the
victim and informant in this case. His evidence
disclose that on the date of incident, his son had
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gone to Kesariya Pattidar's shop and he later
received an information that the appellant had called
his son and took him to Sundarpur. However, his son
did not return that day. On the same date, the son of
the Chaukidar from his village, went to his in-laws
house and saw some people were assaulting a man
while taking him towards Diyara. The Chaukidar later
came to know that the boy belonged to his village
and informed him. He further testified that as he was
unable to locate his son, he lodged a report to the
police, and the fardbeyan is Exhibit-1. He further
testified that after five days, his son returned to
home and informed him that Suresh Pandey, Santosh
Pandey and some unknown criminals had kidnapped
him.
18. During the cross-examination, P.W. 2
testified that the name of the accused Suresh
Pandey was not mentioned in the fardbeyan. He did
not witness the incident and when his son returned
home, he still had his watch with him. The appellant
used to visit his house before the incident, but never
demanded ransom from him. Furthermore, there was
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no dispute between the appellant and victim/Sunil
Kumar and he identified Santosh Kumar Singh as he
used to visit his house.
19. On perusal of the evidence of P.W. 2, it
can be construed that he preferred the fardbeyan
after receiving the information from the Chaukidar/
Patti Dusadh and his son Shiv Nath Paswan, who
informed him that a boy was assaulted by a group of
people. It is pertinent to mention that P.W. 2 is not an
eye-witness of the incident, and his evidence is also
a hearsay evidence.
20. It is also important to note that in order
to prove that P.W. 3 was taken away by some
unknown offenders, the prosecution made no effort
to examine Patti Dusadh or Shiv Nath Paswan to
confirm whether the boy who was assaulted was
indeed the victim i.e. P.W. 3 or not.
21. P.W. 3/ the victim/ Sunil Kumar, stated
that at the time of giving his evidence, his age was
mentioned as 22 years. However, the fardbeyan
does not disclose the victim's age and the evidence
of P.Ws. 1 and 2 is also silent on this aspect.
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22. P.W. 3 testified that the incident occurred
on 06.10.1994 at about 01:00 P.M. when he went out
to purchase medicines, at Kesaria Pitambar Chowk,
where he met the appellant/Santosh Kumar Singh.
The appellant requested him to accompany him to
Sundarpur village to purchase a motorcycle, and he
voluntarily went with him on a bicycle. When they
reached near the ring dam, he saw Suresh Pandey
and was shocked to see him as he had previously
seen him at Pitambar Chowk, Kesaria. He further
testified that he became suspicious and informed
both of them that he needed to defecate and under
this pretext, he moved ahead and started running.
At that moment, both accused along with another
individual, whose face was covered with a cloth,
caught hold of him and directed him to go towards
Diyara. The accused whose face was covered with
cloth had a Nalkatti (a local weapon with iron pipe)
and a lathi and Suresh Pandey had a knife in his
hand. Suresh Pandey then inflicted an injury on him
with the knife. Subsequently, the accused took him
across river. Upon reaching the river bank, they tied
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his legs and hands from behind and an unknown
persons whose face was covered with cloth snatched
Rs. 31.50 from him. There were three more unknown
persons at the river bank, who took him to Diyara,
confined him in a hut and feed him corn flour with
salt and without chilies. When he noticed that the
man guarding him had fallen asleep, he escaped
from the place and reached home and informed his
parents about his kidnapping. He further testified
that his statement was recorded by the Magistrate,
under Section 164 of Cr.P.C. which is Exhibit-2.
23. During the cross-examination, P.W. 3
deposed that he left home with Santosh Kumar Singh
at about 03:00 P.M. and did not meet anyone on the
way between the canal and his house. When they
reached the canal, some strangers whose faces were
covered with cloths arrived. He stated that he could
not identify them and that Suresh Pandey was not
among them. When he attempted to escape in fear,
those persons chased and caught hold of him. His
evidence further disclose that he never had any
dispute with the appellant and that the appellant
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never demanded money from him and he did not
inform the villagers about involvement of Santosh
Kumar and could not name the other persons who
had kidnapped him at night. Upon returning home
after the incident, he was extremely worried,
nervous and scared and he gave his statement to the
police in an abrupt state of mind.
24. Upon appreciating the evidence of the
victim, it is evident that he voluntarily accompanied
the appellant and did not state anything
incriminating against him. However, in his chief-
examination, he made allegations against the other
accused, Suresh Pandey. His evidence clearly
disclose that some unknown persons whose faces
were covered had weapons and a lathi and that
Suresh Pandey inflicted an injury upon him.
25. This Court cannot reappreciate the
evidence against a person, who was acquitted by the
trial Court particularly when the prosecution has not
preferred any appeal against such acquittal. As per
the evidence of the victim boy, no incriminating
material is found against the appellant.
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26. P.W. 4/ Raj Bansi is the mother of the
P.Ws. 1 and 3 and wife of P.W. 2 and her evidence is
also a hearsay evidence. She stated that the
appellant who is the friend of P.W. 3 came to her
house at about 01:00 P.M. and on the date of the
incident called P.W. 3 to accompany him to purchase
a motorcycle. However, her son did not return home
and she gave her statement to the police on
08.10.1994.
27
. During cross-examination, she testified
that the incident occurred during Durga Puja and she
neither saw her son with anyone nor witnessed the
appellant calling her son or taking her son away.
28. The evidence of P.W. 4 does not support
the case of the prosecution. There is a major
discrepancy between the testimonies of P.Ws. 1 to 4.
While the fardbeyan and the evidence of P.W. 4
disclose that the appellant came to the house on the
date of the incident and called the victim to
accompany him on the pretext of purchasing a
motorcycle, however, the evidence of P.Ws. 1 to 3
suggest that the appellant met P.W. 3 near Kesaria
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Pitamabr Chawk and was asked to accompany him
which contradicts with the fardbeyan i.e. Exhibit-1.
None of the witnesses stated that the appellant
kidnapped the victim. Instead, they consistently
testified that the victim voluntarily accompanied the
appellant.
29. Section 364 of IPC defines kidnapping
as follows:-
Kidnapping or abducting in order to
murder-whoever kidnaps or abducts any person in
order that such person may be murdered or may be
so disposed of as to put in danger of being
murdered, shall be punished with (imprisonment for
life) or rigorous imprisonment for a term which may
extend to ten years, and shall also liable to be fined.
30. As per the above definition, the offence
of kidnapping must be committed with the intent to
murder the victim. The evidence of P.Ws. 1 to 4 does
not establish in any manner that victim was
kidnapped for the purpose of murder. In fact P.W. 3
did not make any allegations against the appellant
but stated that the other accused i.e. Suresh Pandey
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assaulted him and inflicted injuries with a knife.
However, the trial Court acquitted Suresh Pandey
despite of specific evidence against him.
31. The other witnesses in this case are P.Ws.
5 and 6, However, they turned hostile, therefore,
their evidences is nowhere helpful for the
prosecution.
32. P.W. 7/Kailash Sahni is alleged to be an
eye-witness of the incident. His evidence disclose
that he came to know about the victim’s kidnapping
and on that particular day, when he was in the field,
he saw three men walking along the road. Further,
he stated that he could not identify them. P.W. 7
identified Suressh Pandey who was later acquitted by
the trial Court but he did not identify the appellant.
33. The documentary evidence includes the
164 statement of the victim i.e. P.W. 3. In his
statement under Section 164 he deposed that the
appellant took him to Diyara and later Suresh Pandey
and another fat man brought him from Diyara to the
dam and the other person accompanying Suresh
Pandey had his face covered with a cloth. When the
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victim tried to escape from the clutches of Suresh
under the pretext of defecating, both of them caught
hold of him. When he confronted the appellant, he
stated that he does not know anything. Further, the
statement under Section 161 of Cr.P.C. disclose that
when the victim attempted to escape from the
clutches of Suresh Pandey and another person,
Suresh struck him near his right eye, tied his hands
from behind, snatched Rs. 31.50 from his pocket,
and confined him a hut. He was guarded by three
fishermen including Suresh and remained confined
there for four days. The unknown persons beat him,
forced him to change his cloths and made him to
wear a lungi. They also threatened him with a gun
and assaulted him if he refused to walk. When he
noticed that only one person was guarding him and
had fallen asleep, he escaped and reached the police
station. The unknown persons had also asked him to
write a letter and further Suresh also threatened him.
34. On perusal of the entire statement under
Section 164 of Cr.P.C., it is evident that P.W. 3
described about wrongful confinement by Suresh
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Pandey and some unknown persons but did not make
any allegations against the appellant. However, a
statement of the victim recorded under Section 164
of Cr.P.C. does not constitute substantive evidence, it
must be corroborated by the victim’s testimony.
35. In the present case, there are several
omissions in the evidence of the victim are found
compared to his statement recorded under Section
164 of Cr.P.C.. On comparison of the evidence of P.W.
3 with that of 164 statement (Exhibit 2), it is evident
that no allegations were made against the appellant.
The prosecution has miserably failed to prove that
P.W. 3 was kidnapped or abducted with an intention
to commit murder or to put him in danger.
36. Therefore, this Court is of the
considerable opinion that the charge under Section
364 of IPC ought not to have been framed by the
trial Court, especially when the Investigating Officer
was unable to identify the unknown persons alleged
to have kidnapped the victim boy. Section 364 of IPC
can be invoked if several persons commit a criminal
act in furtherance of a common intention. However,
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there is nothing on record to establish a common
intention between the appellant and Suresh Pandey
and the unknown persons to commit the offence of
kidnapping. In the absence of such evidence, the
trial Court ought not to have convicted the appellant
for the offence under Section 364 of IPC.
37. Admittedly, the trial Court acquitted
Suresh Pandey despite of having sufficient material
evidence before the Court. Though, the charges were
framed under Section 34, the trial Court ought to
have convicted only for the major offence and not
under Section 34. Furthermore, the charge under
Section 379 of IPC pertains to the theft of a watch
and Rs. 31.50. The evidence of the informant clearly
disclose that P.W. 4 returned home with his watch on
hand. Additionally, the evidence of P.W. 3 indicates
that Suresh Pandey snatched Rs. 31.50 from his
pocket and not the appellant. Therefore, the
conviction under Section 379/34 is also liable to be
set aside.
38. Section 120-B of IPC defines as:-
(Punishment of criminal conspiracy):-
Patna High Court CR. APP (SJ) No.154 of 2004 dt.06-02-2025
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conspiracy to commit an offence punishable with
death, imprisonment for life or rigorous
imprisonment for a term of two years or upwards,
shall, where no express provision is made in this
Code for the punishment of such a conspiracy, be
punished in the same manner as if he had abetted
such offence.
(2). Whoever is a party to a criminal
conspiracy other than a criminal conspiracy to
commit an offence punishable as aforesaid shall be
punished with imprisonment of either description for
a term not exceeding six months, or with fine or with
both.]
39. It is essential for atleast two persons to
agree to commit an illegal act of a legal act by illegal
means. Such an agreement constitutes the crime for
criminal conspiracy.
40. In the present case, there is no evidence
on record that the appellant Santosh Kumar Singh,
Suresh Pandey and others have conspired together
to commit an offence under Section 364 of IPC.
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Therefore, the trial Court ought not have to have
framed the charge under Section 120-B of IPC and
conviction cannot be sustained for the said offence.
41. In the case of Yogarani Vs. State
represented by Inspector of Police, reported in
2024 SCC OnLine SC 2609, their Lordships have
held at Para-10 which reads as follows:-
10. The Court cannot convict one
accused and acquit the other when
there is similar or identical evidence
pitted against two accused persons. In
the case of Javed Shaukat Ali Qureshi
v. State of Gujarat reported in 2023
INSC 829, this Court has held that:-
“15. When there is similar or
identical evidence of eye-witnesses
against two accused by ascribing
them the same or similar role, the
Court cannot convict one accused and
acquit the other. In such a case, the
cases of both the accused will be
governed by the principle of parity.
This principle means that the Criminal
Court should decide like cases alike,
and in such cases, the Court cannot
make a distinction between the two
accused, which will amount to
discrimination.”
42. In the case of Javed Shaukat Ali
Qureshi v. State of Gujarat reported in (2023) 9
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SCC 164, their Lordships have held at Para 15 which
reads as follows:-
15. When there is similar or identical
evidence of eye-witnesses against
two accused by ascribing them the
same or similar role, the Court
cannot convict one accused and
acquit the other. In such a case, the
cases of both the accused will be
governed by the principle of parity.
This principle means that the
Criminal Court should decide like
cases alike, and in such cases, the
Court cannot make a distinction
between the two accused, which will
amount to discrimination.
43. The Learned counsel for the appellant
has relied upon the judgment of the Hon’ble Apex
Court in the case of Munna Lal Vs. State of Uttar
Pradesh, reported in 2023 SCC OnLine SC 80, at
Paragraph Nos. 28, 39 and 40 which reads as follow:-
28. Before embarking on the
exercise of deciding the fate of these
appellants, it would be apt to take
note of certain principles relevant for
a decision on these two appeals.
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Needless to observe, such principles
have evolved over the years and
crystallized into ‘settled principles of
law’. These are:
(a). Section 134 of Indian
Evidence Act, 1872, enshrines the
well-recognized maxim that evidence
has to be weighed and not counted.
In other words, it is the quality of
evidence that matters and not the
quantity. As a sequitur, even in a
case of murder, it is not necessary to
insist upon a plurality of witnesses
and the oral evidence of a single
witness, if found to be reliable and
trustworthy, could lead to a
conviction.
(b). Generally speaking, oral
testimony may be classified into
three categories, viz.:
(i) Wholly reliable;
(ii) Wholly unreliable;
(iii) Neither wholly reliable
nor wholly unreliable.
The first two category of
cases may not pose serious difficulty
for the court in arriving at its
conclusion(s). However, in the third
category of cases, the court has to
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be circumspect and look for
corroboration of any material
particulars by reliable testimony.
direct or circumstantial, as a
requirement of the rule of prudence.
(c). A defective investigation is not
always fatal to the prosecution where
ocular testimony is found credible
and cogent. While in such a case the
court has to be circumspect in
evaluating the evidence, a faulty
investigation cannot in all cases be a
determinative factor to throw out a
credible prosecution version.
(d). Non-examination of the
Investigating Officer must result in
prejudice to the accused; if no
prejudice is caused, mere non-
examination would not render the
prosecution case fatal.
(e). Discrepancies do creep in, when
a witness deposes in a natural
manner after lapse of some time,
and if such discrepancies are
comparatively of a minor nature and
do not go to the root of the
prosecution story, then the same
may not be given undue importance.
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39. Secondly, though PW-4 is said to
have reached the place of
occurrence at 1.30 p.m. on 5th
September, 1985 and recovered a
bullet in the blood oozing out from
the injury at the hip of the dead
body, no effort worthy of
consideration appears to have been
made to seize the weapons by which
the murderous attack was launched.
It is true that mere failure/neglect to
effect seizure of the weapon(s)
cannot be the sole reason for
discarding the prosecution case but
the same assumes importance on
the face of the oral testimony of the
so-called eye-witnesses, i.e., PW-2
and PW-3, not being found by this
Court to be wholly reliable. 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
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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.
“40. As far as non-obtaining of
ballistic report is concerned, it is no
Patna High Court CR. APP (SJ) No.154 of 2004 dt.06-02-2025
27/32
doubt true that its essentiality would
depend upon the circumstances of
each case. Here, since no weapon of
offence was seized, no ballistic report
was called for and obtained.
Although Mr. Giri contended that
Munna Lal had a licensed gun, this
Court has not been able to trace any
evidence in the records in regard
thereto. However, nothing turns on it.
The failure/neglect to seize the
weapons of offence, on facts and in
the circumstances of the present
case, has the effect of denting the
prosecution story so much so that
the same, together with non-
examination of material witnesses
constitutes a vital circumstance
amongst others for granting the
appellants the benefit of doubt”.
44. In the case of Banshidhar Singh @
Banshi Singh Vs. The State of Bihar passed in
Cr. Appeal (SJ) No. 38 of 2013, the co-ordinate
Bench of this Court has also relied on the settled
principles of Munna Lal Vs. State of Punjab.
45. In the Case of Abdul Sayeed Vs. State
of Madhya Pradesh and others reported in
Patna High Court CR. APP (SJ) No.154 of 2004 dt.06-02-2025
28/32
[2010] 10 SCC 259, their Lordships have held at
Para Nos. 32 and 38 which reads as follows:-
32. In Ram Narain Singh v. State of
Punjab this Court held that where the
evidence of the witnesses for the
prosecution is totally inconsistent
with the medical evidence or the
evidence of the ballistics expert, it
amounts to a fundamental defect in
the prosecution case and unless
reasonably explained it is sufficient
to discredit the entire case.
38. In State of U.P. v. Hari Chand this
Court reiterated the aforementioned
position of law and stated that: (SCC
p. 545, para 13)
“13…. In any event unless
the oral evidence is totally
irreconcilable with the medical
evidence, it has primacy.”
46. In the case of Bhajan Singh alias
Harbhajan Singh and Others Vs. State of
Haryana (2011)7 SCC 421, their Lordships have
held at Para Nos. 32 and 38 which reads as follows:-
32. It has further been submitted on
behalf of the appellants that there is
contradiction in medical evidence
Patna High Court CR. APP (SJ) No.154 of 2004 dt.06-02-2025
29/32and ocular evidence. The trial court
has examined this issue and in para
22 of the impugned judgment,
observed as under:
“22…. that accused Joga
Singh and accused Mukhtiar Singh
had attacked the victims with swords
whereas accused Nishabar Singh had
used ‘gandasa’ for the purpose,
resulting in the deaths of Gian Singh
and Nishan Singh and brutal attempt
on the life of PW Ajaib Singh. The
trial court had further observed that
the skull injury attributed to accused
Gurdeep Singh does not receive
corroboration from the medical
evidence on record because such
forceful blow was bound to leave
some external mark of injury at the
site of the impact but no such mark
was seen there by the doctor.”
The trial court reached the
conclusion that it seems that
accused Puran Singh was also
implicated in this case along with his
father Bhajan Singh alias Harbhajan
Singh because he is a brother of
prime accused Joga Singh. Thus. the
Patna High Court CR. APP (SJ) No.154 of 2004 dt.06-02-2025
30/32
involvement of accused Puran Singh
in the incident is also doubtful.
38. Thus, the position of law in such
a case of contradiction between
medical and ocular evidence can be
crystallized to the effect that though
the ocular testimony of a witness has
greater evidentiary value vis-à-vis
medical evidence, when medical
evidence makes the ocular testimony
improbable, that becomes a relevant
factor in the process of the
evaluation of evidence. However,
where the medical evidence goes so
far that it completely rules out all
possibility of the ocular evidence
being true, the ocular evidence may
be disbelieved. (Vide Abdul Sayeed.)
47. The aforesaid citations relied upon by the
Learned counsel for the appellant squarely apply to
the present facts and circumstances of the case. The
Court cannot convict one accused and acquit the
other based on the same facts and circumstances, as
held by the Hon’ble Apex Court. Further, in the
present case also the Investigating Officer was not
examined which was vital to the case of the
Patna High Court CR. APP (SJ) No.154 of 2004 dt.06-02-2025
31/32
prosecution, and no grievous hurt or injury was
proved by the prosecution to attract Section 364 of
the IPC.
48. The Hon’ble Apex Court held that the
offence of criminal conspiracy cannot survive the
acquittal of other alleged conspirators and the
appellant cannot be convicted unless there is proof
that he conspired with the persons distinct from co-
accused. If the co-accused has been acquitted of the
charge of criminal conspiracy, the appellant alone
cannot be held guilty.
49. In view of above discussions and
observations, this Court is of the considered opinion
that the prosecution has miserably failed to prove
the guilt of the appellant for the offences punishable
under Section 364 r/w 34, 379 r/w 34 and 120-B r/w
34 of IPC beyond a reasonable doubt and the trial
Court ought not to have convicted the appellant for
the aforesaid charges, therefore, the judgment and
order dated 23.02.2004 passed by Additional District
and Sessions Judge, (Fast Track Court No. IV), East
Patna High Court CR. APP (SJ) No.154 of 2004 dt.06-02-2025
32/32
Champaran, at Motihari, in Sessions Trial No.
324/1995 is liable to be set aside.
50. In result, the criminal appeal is allowed
setting aside the judgment and order dated
23.02.2004 passed by Additional District and
Sessions Judge, (Fast Track Court No. IV), East
Champaran, at Motihari, in Sessions Trial No.
324/1995 and the appellant is acquitted for the
aforesaid offences.
51. The record reveals that the appellant was
enlarged on bail by the Court vide order dated
03.07.2007 in I.A. No. 946 of 2007. Hence, the bail
bonds of the appellant shall stand cancelled.
(G. Anupama Chakravarthy, J)
Manish/-
AFR/NAFR NAFR CAV DATE N/A Uploading Date 07.03.2025 Transmission Date 07.03.2025
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