Patna High Court – Orders
Nasrin Khanam vs The State Of Bihar on 17 April, 2025
Author: Sunil Dutta Mishra
Bench: Sunil Dutta Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1401 of 2024
Arising Out of PS. Case No.-70 Year-2020 Thana- RAUTA District- Purnia
======================================================
Sanjoor Alam S/o- Abdul khalil, Resident of Village- Baulan P.S.-Rauta Dist-
Purnea.
... ... Appellant/s
Versus
The State of Bihar.
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 1321 of 2024
Arising Out of PS. Case No.-70 Year-2020 Thana- RAUTA District- Purnia
======================================================
Nasrin Khanam D/O Md. Kasim Resident of village - Fasalbari (Palashbari),
P.S.- Rauta, District - Purnea.
... ... Appellant/s
Versus
The State of Bihar.
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 1401 of 2024)
For the Appellant/s : Mr. Md. Helal Ahmad, Advocate
Mr. Madheha Hashmi, Advocate
For the Respondent/s : Mr. Dilip Kumar Sinha, APP
For the Informant : Mr. Mazher Alam, Advocate
(In CRIMINAL APPEAL (DB) No. 1321 of 2024)
For the Appellant/s : Mr. Raj Kumar, Advocate
Mr. Sarvottam Kumar, Advocate
Mr. Pratik Kumar, Advocate
Mr. Rajnish Kumar, Advocate
For the Respondent/s : Mr. Dilip Kumar Sinha, Advocate
For the Informant : Mr. Mazher Alam, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
4 17-04-2025
Heard Mr. Md. Helal Ahmad, learned Advocate for
the appellant in Cr. Appeal (DB) No.1401 of 2024, Mr. Raj
Patna High Court CR. APP (DB) No.1401 of 2024(4) dt.17-04-2025
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Kumar, learned Advocate for the appellant in Cr. Appeal (DB)
No.1321 of 2024, Mr. Mazher Alam, learned Advocate for the
informant in both the appeals and learned APP for the State, Mr.
Dilip Kumar Sinha in both these appeals.
2. These appeals have been filed on behalf of the
appellants under Section 374(2) read with Section 389(1) of the
Code of Criminal Procedure, 1973 (hereinafter, referred as the
Code’) against the common judgment of conviction dated
03.09.2024 and the order of sentence dated 10.09.2024,
rendered by the learned 2nd Additional District & Sessions
Judge, Purnea, in Sessions Trial Case No. 160 of 2020, arising
out of Rauta P.S. Case No. 70 of 2020, CIS No.160 of 2020,
whereby the appellants/convicts have been convicted for
commission of the offences punishable under Sections 302 and
201 of I.P.C. and sentenced to undergo imprisonment for life for
the offence under Section-302 of I.P.C. with fine of Rs. 10,000/-
(Rupees Ten Thousand) each and, in default of payment of fine,
to undergo S.I. for six months. Further, the appellants have been
sentenced to undergo R.I. for three years for the offence under
Section-201 of I.P.C. with fine of Rs. 5,000/- (Rupees Five
Thousand) each and, in default of payment of fine, to undergo
additional S.I. for two months. Both the sentences have been
Patna High Court CR. APP (DB) No.1401 of 2024(4) dt.17-04-2025
3/18
directed to run concurrently.
3. The present appeals have been admitted and the
appellants, at this stage, pray for grant of bail and for suspension
of sentence for the present.
4. Learned advocates appearing for the appellant in
Cr. Appeal (DB) No. 1321 of 2024 would mainly submit that
present is a case of circumstantial evidence and there is no eye-
witness to the incident in question. It is further submitted that,
as per the case of the prosecution, the confessional statement of
the appellant was recorded and thereafter on the basis of the
confessional statement, discovery of the weapon was made in
presence of two independent witnesses. It is further submitted
that, as per the case of the prosecution, the CDR of the so called
mobile of the appellant and the deceased as well as the other
two co-accused were collected by the Investigating Officer from
which it has been alleged that there was a talk between the
appellant and the deceased and the other co-accused on the date
of the occurrence. Thus, only on the basis of the aforesaid two
evidences, the appellant has been implicated.
5. Learned advocate further submits that, so far as
CDR is concerned, the prosecution has not duly proved the
same by leading cogent evidence. The certificate, as
Patna High Court CR. APP (DB) No.1401 of 2024(4) dt.17-04-2025
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contemplated under Section 65B (4) of Indian Evidence Act, has
not been produced before the Court nor any witness from the
concerned mobile company was examined.
6. Learned advocate further submits that, so far as
discovery of weapon is concerned, the same is also not duly
proved. Learned advocate has referred the deposition given by
the Investigating Officer, PW-8. It is submitted that the
procedure contemplated under Section 27 of the Indian
Evidence Act has not been followed by the Investigating
Agency. Learned advocate, at this stage, has placed reliance
upon the decision rendered by the Hon’ble Supreme Court in the
case of Ramanand @ Nandlal Bharti vs. State of Uttar
Pradesh reported in (2023) 16 SCC 510. Learned advocate has
mainly placed reliance upon paragraph nos. 56 & 57 of the said
decision. Learned Advocate would thereafter place reliance
upon the decision rendered by the Hon’ble Supreme Court in the
case of Raja Khan vs. State of Chattisgarh reported in (2025) 3
SCC 314 and, more particularly paragraph 31 to 37 of the said
decision. At this stage, learned advocate has also placed reliance
upon the decision rendered by the Division Bench of this Court
on 18.02.2025 in Cr. Appeal (DB) No.142 of 2019. After
referring to the aforesaid decisions, learned advocate would
Patna High Court CR. APP (DB) No.1401 of 2024(4) dt.17-04-2025
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submit that the Investigating Officer did not prepare the
preliminary panchnama at the Police Station in presence of the
two witnesses and thereby did not record the statement of the
present appellant that she wants to disclose the place where the
so called weapon, which was used in the alleged incident, has
been kept by her. It is further submitted that there is no evidence
on record from which it can be said that appellant was present at
the place from where the so called weapon, i.e. knife, has been
discovered in presence of two witnesses. Learned advocate
would further submit that the independent witnesses, in whose
presence the knife was discovered, have not been examined by
the prosecution. It is further submitted that even their statements
were not recorded by the Investigating Officer. Learned
advocate referred paragraph 2 & 17 of the deposition of PW-8,
the Investigating Officer, in support of the aforesaid contentions.
At this stage, it is also contended that even after the discovery of
the knife from the pond, the same was not sent for necessary
analysis to the FSL. Learned advocate referred paragraph 18 of
the cross-examination of the Investigating Officer. It is further
submitted that even said weapon was not produced before the
Court. At this stage, it is further submitted that the so called
weapon, i.e. knife, which was allegedly used in committing the
Patna High Court CR. APP (DB) No.1401 of 2024(4) dt.17-04-2025
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offence was not shown to the Doctor i.e. PW-7, who had
conducted the post mortem of the dead body of the deceased.
7. Learned advocate, therefore, urged that there is no
evidence available on record from which it can be established
that the appellant has committed the alleged offence and the
prosecution has miserably failed to prove the chain of
circumstances from which it can be said that appellant has killed
the deceased. Learned advocate, therefore, urged that the Trial
Court has committed grave error while passing the impugned
judgment and order.
8. Learned advocate further submits that appellant is a
lady accused, she was on bail during pendency of the trial and it
is not the case of the prosecution that she has misused the liberty
granted to her. It is further submitted that present appeal is of
the year 2024, which is not likely to be heard in near future.
Learned advocate, therefore, urged that the appellant be released
on bail and the sentence imposed by the Trial Court be
suspended.
9. Learned advocate Mr. Md. Helal Ahmad appearing
for the appellant in Cr. Appeal (DB) No.1401 of 2024 has
adopted the submission canvassed by learned advocate who is
appearing in another appeal filed by the co-convict. However,
Patna High Court CR. APP (DB) No.1401 of 2024(4) dt.17-04-2025
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learned advocate would further submit that, so far as the present
appellant is concerned, he has been implicated on the basis of
the confessional statement of the co-accused. Further, as per the
case of the prosecution, the co-convict had called the appellant
and there is CDR of mobile phone of the present appellant and
other co-convict. However, the said CDR has not been duly
proved and, therefore, it is a very weak piece of evidence.
Except the aforesaid two aspects, there is no other material
connecting the present appellant with the incident in question.
Learned advocate, therefore, urged that the prosecution has
failed to prove the case against the present appellant beyond
reasonable doubt. Learned advocate, at this stage, has contended
that appellant was released on bail during pendency of the trial
and he has not misused the liberty granted to him. Learned
advocate, therefore, urged that this appellant be released on bail
and the sentence imposed by the Trial Court be suspended.
10. On the other hand, learned advocate for the
informant has opposed the prayer for grant of bail and for
suspension of sentence of both these appellants. Learned APP
has also opposed the prayer for grant of bail and for suspension
of sentence of both these appellants. Both the learned advocates
mainly contended that the Investigating Officer has received the
Patna High Court CR. APP (DB) No.1401 of 2024(4) dt.17-04-2025
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information from spy and thereafter Investigating Agency came
to know that appellant of Cr. Appeal (DB) No.1321 of 2024 was
having love affair with the deceased and, therefore, deceased
was called by the appellant. There is a telephonic conversation
between the said appellant and the deceased. Similarly, there is
conversation or telephonic talk between said appellant with the
other two co-accused. The CDR has been collected by the
Investigating Officer (PW-8) and from the said CDR, it can be
said that the accused were in contact with the deceased.
11. Learned advocates would further submit that
confessional statement of convict, Nasrin Khanam, came to be
recorded wherein she had admitted her guilt and narrated about
the manner in which the incident took place. Thereafter, she had
disclosed that the knife which was used in committing the crime
was kept near one pond and on the basis of the information
given by the said accused, knife was discovered. Thus, there is a
discovery panchnama prepared by the Investigating Agency and
seizure list was prepared which has been duly exhibited.
Learned advocate, therefore, urged that when the weapon which
was used in committing the offence has been discovered at the
instance of one of the accused, the prosecution has proved the
case against appellants beyond reasonable doubt and, therefore,
Patna High Court CR. APP (DB) No.1401 of 2024(4) dt.17-04-2025
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the Trial Court has not committed any error while passing the
impugned judgment and order. Learned advocates appearing for
the respondents, therefore, urged that the prayer for grant of bail
and for suspension of sentence may not be entertained.
12. We have gone through the materials placed on
record and also examined the Trial Court records. We have
considered the submissions canvassed by the learned advocates
appearing for the parties.
13. From the material placed on record, prima facie, it
would reveal that there is no eye-witness to the incident in
question and the case of prosecution rests on circumstantial
evidence. The main circumstance which has been produced by
the prosecution before the Trial Court in the form of evidence of
PW-8, Investigating Officer, is the CDR of the mobiles of both
these appellants, deceased and other co-accused. On the basis of
the said CDR, the prosecution has tried to contend that because
of the telephonic conversation between the parties and telephone
calls made on the date of occurrence, the appellants have
committed the alleged offences. It is further case of the
prosecution that appellant Nasrin Khanam was having the
motive to kill the deceased as she was having love affair with
the deceased and, therefore, with the help of two other co-
Patna High Court CR. APP (DB) No.1401 of 2024(4) dt.17-04-2025
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accused, who are near relatives of Nasrin Khanam, they have
committed the alleged offences. We have gone through the
deposition given by the prosecution witnesses, including the
Investigating Officer, PW-8. We have also gone through the
certificate produced as Exhibit 13 & 14. It appears from the said
certificate that the same has been given by Technical Cell of
Superintendent of Police, Purnea. Even assuming that there was
a telephonic conversation between the parties, prima facie, from
their conversation/telephonic talk it cannot be presumed that the
appellants have killed the deceased as alleged.
14. Further, from the deposition of Investigating
Officer, PW-8, from paragraph 2, it appears that confessional
statement of the appellant- Nasrin Khanam came to be recorded
by him and thereafter, on the basis of the said confessional
statement, one knife was discovered from the pond, however,
prima facie, from paragraph 17 of his cross-examination, it is
revealed that the said Investigating Officer did not record the
statement of two independent witnesses in whose presence the
so called weapon was discovered. Further, prima facie, there is
nothing on record to suggest that appellant- Nasrin Khanam was
present at the said place when the knife was discovered.
15. At this stage, we would like to refer the decision
Patna High Court CR. APP (DB) No.1401 of 2024(4) dt.17-04-2025
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rendered by the Hon’ble Supreme Court in the case of
Ramanand @ Nandlal Bharti (supra) wherein the Hon’ble
Supreme Court observed in paragraph 56 & 57 as under:-
“56. If, it is say of the investigating
officer that the appellant-accused
while in custody on his own free
will and volition made a statement
that he would lead to the place
where he had hidden the weapon of
offence along with his bloodstained
clothes then the first thing that the
investigating officer should have
done was to call for two
independent witnesses at the police
station itself. Once the two
independent witnesses arrive at the
police station thereafter in their
presence the accused should be
asked to make an appropriate
statement as he may desire in regard
to pointing out the place where he is
said to have hidden the weapon of
offence. When the accused while in
custody makes such statement
before the two independent
witnesses (panch witnesses) the
exact statement or rather the exact
words uttered by the accused should
be incorporated in the first part of
the panchnama that the investigating
officer may draw in accordance with
law. This first part of the panchnama
for the purpose of Section 27 of the
Evidence Act is always drawn at the
police station in the presence of the
independent witnesses so as to lend
credence that a particular statement
was made by the accused expressing
his willingness on his own free will
and volition to point out the place
where the weapon of offence or any
Patna High Court CR. APP (DB) No.1401 of 2024(4) dt.17-04-2025
12/18other article used in the commission
of the offence had been hidden.
Once the first part of the panchnama
is completed thereafter the police
party along with the accused and the
two independent witnesses (panch
witnesses) would proceed to the
particular place as may be led by the
accused. If from that particular place
anything like the weapon of offence
or bloodstained clothes or any other
article is discovered then that part of
the entire process would form the
second part of the panchnama. This
is how the law expects the
investigating officer to draw the
discovery panchnama as
contemplated under Section 27 of
the Evidence Act. If we read the
entire oral evidence of the
investigating officer then it is clear
that the same is deficient in all the
aforesaid relevant aspects of the
matter.
57. The reason why we are not ready or
rather reluctant to accept the
evidence of discovery is that the
investigating officer in his oral
evidence has not said about the exact
words uttered by the accused at the
police station. The second reason to
discard the evidence of discovery is
that the investigating officer has
failed to prove the contents of the
discovery panchnama. The third
reason to discard the evidence is that
even if the entire oral evidence of the
investigating officer is accepted as it
is, what is lacking is the authorship of
concealment. The fourth reason to
discard the evidence of the discovery
is that although one of the panch
witnesses PW 2 Chhatarpal Raidas
was examined by the prosecution in
Patna High Court CR. APP (DB) No.1401 of 2024(4) dt.17-04-2025
13/18the course of the trial, yet has not
said a word that he had also acted as
a panch witness for the purpose of
discovery of the weapon of offence
and the bloodstained clothes. The
second panch witness, namely, Pratap
though available was not examined
by the prosecution for some reason.
Therefore, we are now left with the
evidence of the investigating officer
so far as the discovery of the weapon
of offence and the bloodstained
clothes as one of the incriminating
pieces of circumstances is concerned.
We are conscious of the position of
law that even if the independent
witnesses to the discovery
panchnama are not examined or if no
witness was present at the time of
discovery or if no person had agreed
to affix his signature on the
document, it is difficult to lay down,
as a proposition of law, that the
document so prepared by the police
officer must be treated as tainted and
the discovery evidence unreliable. In
such circumstances, the Court has to
consider the evidence of the
investigating officer who deposed to
the fact of discovery based on the
statement elicited from the accused
on its own worth.”
16. Once again we have gone through the deposition
given by the PW-8, Investigating Officer. From the deposition of
the said witness, prima facie, it appears that the said witness did
not follow the procedure as contemplated and referred by
Hon’ble Supreme Court in the aforesaid decision.
17. At this stage, we would also like to refer the
Patna High Court CR. APP (DB) No.1401 of 2024(4) dt.17-04-2025
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decision rendered by the Hon’ble Supreme Court in the case
of Raja Khan (supra). The Hon’ble Supreme Court observed
in paragraph 31 as under:-
“31. The question as to
whether evidence relating to recovery
is sufficient to fasten guilt on the
accused was considered by this Court
in Bodhraj v. State of J&K [Bodhraj
v. State of J&K, (2002) 8 SCC 45 :
2003 SCC (Cri) 201] , wherein it has
been held as under : (SCC pp. 58-59,
para 18)
“18. … Section 27 of the Indian
Evidence Act, 1872 (in short “the Evidence
Act“) is by way of proviso to Sections 25 to
26 and a statement even by way of
confession made in police custody which
distinctly relates to the fact discovered is
admissible in evidence against the accused.
This position was succinctly dealt with by this
Court in State (UT of Delhi) v. Bal Krishan
[State (UT of Delhi) v. Bal Krishan, (1972) 4
SCC 659] and Mohd. Inayatullah v. State of
Maharashtra [Mohd. Inayatullah v. State of
Maharashtra, (1976) 1 SCC 828 : 1976 SCC
(Cri) 199] . The words “so much of such
information” as relates distinctly to the fact
thereby discovered, are very important and
the whole force of the section concentrates
on them. Clearly the extent of the
information admissible must depend on the
exact nature of the fact discovered to which
such information is required to relate. The
ban as imposed by the preceding sections
was presumably inspired by the fear of the
legislature that a person under police
influence might be induced to confess by the
exercise of undue pressure. If all that is
required to lift the ban be the inclusion in
the confession of information relating to an
object subsequently produced, it seems
reasonable to suppose that the persuasive
powers of the police will prove equal to the
occasion, and that in practice the ban will
Patna High Court CR. APP (DB) No.1401 of 2024(4) dt.17-04-2025
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lose its effect. The object of the provision
i.e. Section 27 was to provide for the
admission of evidence which but for the
existence of the section could not in
consequence of the preceding sections, be
admitted in evidence. It would appear that
under Section 27 as it stands in order to
render the evidence leading to discovery of
any fact admissible, the information must
come from any accused in custody of the
police. The requirement of police custody is
productive of extremely anomalous results
and may lead to the exclusion of much
valuable evidence in cases where a person,
who is subsequently taken into custody and
becomes an accused, after committing a
crime meets a police officer or voluntarily
goes to him or to the police station and
states the circumstances of the crime which
lead to the discovery of the dead body,
weapon or any other material fact, in
consequence of the information thus
received from him. This information which is
otherwise admissible becomes inadmissible
under Section 27 if the information did not
come from a person in the custody of a
police officer or did come from a person not
in the custody of a police officer. The
statement which is admissible under Section
27 is the one which is the information
leading to discovery. Thus, what is admissible
being the information, the same has to be
proved and not the opinion formed on it by
the police officer. In other words, the exact
information given by the accused while in
custody which led to recovery of the articles
has to be proved. It is, therefore, necessary
for the benefit of both the accused and the
prosecution that information given should be
recorded and proved and if not so recorded,
the exact information must be adduced
through evidence. The basic idea embedded
in Section 27 of the Evidence Act is the
doctrine of confirmation by subsequent
events. The doctrine is founded on the
principle that if any fact is discovered as a
search made on the strength of any
information obtained from a prisoner, such a
discovery is a guarantee that the information
Patna High Court CR. APP (DB) No.1401 of 2024(4) dt.17-04-2025
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supplied by the prisoner is true. The
information might be confessional or non-
inculpatory in nature but if it results in
discovery of a fact, it becomes a reliable
information. It is now well settled that
recovery of an object is not discovery of fact
envisaged in the section. The decision of the
Privy Council in Pulukuri Kotayya v. King-
Emperor [Pulukuri Kotayya v. King-Emperor,
1946 SCC OnLine PC 47 : AIR 1947 PC 67] is
the most-quoted authority of supporting the
interpretation that the “fact discovered”
envisaged in the section embraces the place
from which the object was produced, the
knowledge of the accused as to it, but the
information given must relate distinctly to
that effect. [See State of Maharashtra v.
Damu [State of Maharashtra v. Damu, (2000)
6 SCC 269 : 2000 SCC (Cri) 1088] .] No doubt,
the information permitted to be admitted in
evidence is confined to that portion of the
information which “distinctly relates to the
fact thereby discovered”. But the information
to get admissibility need not be so truncated
as to make it insensible or incomprehensible.
The extent of information admitted should
be consistent with understandability. Mere
statement that the accused led the police
and the witnesses to the place where he
had concealed the articles is not indicative
of the information given.”
18. Keeping in view the aforesaid decisions, if the
evidence led by the prosecution is examined, prima facie, it
can be observed that the procedure contemplated for
discovery of the weapon has not been duly followed by the
Investigating Agency. Even the weapon which was used in
commission of the crime was not sent for necessary analysis
to the FSL nor the said weapon was produced before the
Court during the course of trial.
Patna High Court CR. APP (DB) No.1401 of 2024(4) dt.17-04-2025
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19. So far as the appellant Sanjoor Alam is
concerned, he has been implicated on the basis of the
statement of the co-accused i.e. Nasrin Khanam.
20. It is not in dispute that both these appellants
were released on bail during pendency of the trial and it is not
the case of the prosecution that they have misused the liberty
granted to them. The present appeals are of the year 2024 and
the same are not likely to be heard in near future.
21. Looking to the aforesaid facts and circumstances
of the present case, we are of the view that request made by
the appellants for grant of bail and for suspension of sentence
requires consideration.
22. Accordingly, the appellants, namely Sanjoor
Alam and Nasrin Khanam, are ordered to be released on bail
during pendency of the present appeals on executing bonds of
Rs. 15,000/- (Rupees Fifteen Thousand) each and upon
furnishing two sureties of the like amount each to the
satisfaction of learned learned 2nd Additional District &
Sessions Judge, Purnea, in Sessions Trial Case No. 160 of
2020, arising out of Rauta P.S. Case No. 70 of 2020, CIS
No.160 of 2020, and the sentence imposed by the Trial Court
is suspended, so far as these appellants are concerned.
Patna High Court CR. APP (DB) No.1401 of 2024(4) dt.17-04-2025
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23. It is clarified that the aforesaid observations are
tentative observations made by this Court while considering
the request of the appellants for grant of bail.
24. The appellants should co-operate in this Court
till disposal of the appeal.
25. Realization of fine shall also remain stayed
during the pendency of the appeal.
(Vipul M. Pancholi, J)
(Sunil Dutta Mishra, J)
rakhi/ritik
U T
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