Patna High Court
Ramesh Kumar And Ors vs The State Of Bihar on 3 July, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.740 of 2011
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1. Ramesh Kumar, Son of Bishundeo Mandal.
2. Ranjan Kumar, Son of Bishundeo Mandal.
Both residents of village-Raghopur, P.S. Parbatta, District- Bhagalpur.
3. Rajesh Kumar, Son of Shibrath Mandal, Resident of Village-Shankarpur,
P.S. Parbatta, District- Bhagalpur.
4. Dinesh Kumar, Son of Late Harish Chandra Mandal, Resident of Village-
Bari Alalpur, P.S. Parbatta, District-Bhagalpur.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
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Appearance:
For the Appellant/s : Mr. Ranjan Kumar Jha, Advocate
: Mr. Sanjee Kumar @ Deepak Sahay, Advocate
: Ms. Kumari Neetu, Advocate
For the State : Mr. A. M. P. Mehta, APP
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CORAM: HONOURABLE MR. JUSTICE RAMESH CHAND MALVIYA
CAV JUDGMENT
Date: 03.07.2025
Heard learned counsel for the appellants and
learned APP for the State.
2. This present appeal has been filed under
Section 374(2) of the Code of Criminal Procedure Code, 1973
(hereinafter referred to as the ‘Code’) passed against the
judgment and order of conviction dated 09.06.2011 / 15.06.2011
passed by the learned Additional Sessions Judge, Fast Track
Court- Vth, Bhagalpur in Sessions Trial No. 20 of 2007 whereby
and where under, the appellants have been convicted under
Sections 365, 379, 147 148 and 149 of the Indian Penal Code
(hereinafter referred as ‘IPC‘) and sentenced to undergo
rigorous imprisonment for five years and fine of Rs. 5,000/- for
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the offence punishable under Section 365 of the IPC, rigorous
imprisonment for three years for the offence punishable under
Section 379 of the IPC, rigorous imprisonment for one year for
the offence punishable under Section 147 of the IPC and
rigorous imprisonment for two years for the offence punishable
under Section 148 of the IPC. All the sentences are directed to
be run concurrently.
3. On the basis of the written report of informant
namely Ghanshyam Yadav, the case of the prosecution in brief is
that informant and his staffs Subhash Yadav, Vinod Yadav,
Pankaj Raj, and Vasuki Dhar Mandal, who work as Munshi of
Ghat Collector. They give tickets to those who go from one side
to the other. On 18.11.1994 at around 9:00 AM, 60-70 peoples
armed with sticks, revolvers and iron rods came from Ratnesh
Babu’s ship from the other side. Rajesh Kumar took stick in his
hands and led them towards the counter of these people
(Informant and others). Informant and others got scared that the
same boy was not paying the ticket money yesterday and had
created a hassle, all these people were coming to kill the
informant and his staffs, so he (Informant) ran towards the east
from the counter, from behind his friends Pankaj Ram, Vinod
Ram, Javed Miyan and Subhash Yadav, who were near the
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money at the counter, also ran away. The informant turned back
and saw that Rajesh Kumar was carrying a stick in his hand,
Ranjan Kumar Jaiswal was carrying a revolver, Dinesh Kumar
was carrying a rod, Ramesh Kumar was carrying a whip made
of electric wire and the other two were carrying weapons. He
recognized Subhash Yadav running towards the east of the
counter and everyone surrounded him and started beating him.
The rest of the people were chasing the other companions of the
informant. He (the informant) was watching from the ditch next
to the banyan tree that the counter was being destroyed. They
took Rs 3500/- from the box. When they failed to catch the other
staffs, they beat up Subhash and took him to the ship. It is
possible that he may kill him and drown him in the Ganges.
4. On the basis of the above written report,
Kotwali Sadar Bhagalpur police station case number was
registered as 570 of 1994 and the investigation of the case was
given to the Investigating Officer, who after investigation found
the case to be true and registered under Sections 147, 148, 149,
364, 365, 385 and 379 of the IPC against the accused and
Sections 25 (1-B), 26 and 35 of the Arms Act. Charge sheet was
submitted and cognizance of the crime was taken by the Chief
Judicial Magistrate transferred the case to the Court of the
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Judicial Magistrate for trial, who handed over the said case to
the Court of Sessions.
5. On behalf of the prosecution altogether three
witnesses has been examined; out of them, PW-1 Subhash
Yadav, PW-2 Pankaj Kumar and PW-3 Mohd. Javed and on
behalf of the defense, 3 defense witnesses has been examined
out of them DW-1 Ashish Thakur, DW-2 Chhote Lal Singh and
DW-3 Sanjay Singh. PW-2 and 3 were declare hostile by the
prosecution.
6. PW-1 Subhash Yadav in his examination-in-
chief stated that the alleged incident took place 13 years ago at
9:00 AM. He used to book tickets at the ghat. A day before the
occurrence he had a fight with the accused persons with respect
to the ticket amount. Accused Rajesh Kumar, Rahul Kumar,
Dinesh Kumar, Ramesh Kumar came with 60-70 men and
started beating him up and took him across the Ganges. Ramesh
Kumar had an electric whip in his hand, Ranjan Kumar had a
pistol, Dinesh Kumar had a stick and Rahul had an iron rod in
his hand. The accused also took away Rs. 3,500/- which has
been collected from the tickets. Bada Babu of Parvata police
station rescued him.
6.i. In his cross-examination, he stated that he
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already knew the accused and they used to cross each other.
Rahul Kumar picked up the money box, the box was not locked.
There was already money for the ticket in the box and it was not
locked. On the day of occurrence there was around Rs1,000/-
and there was no half ticket that too was looted. He further
stated that 60-70 persons were came to attack them but there
was no blood stain on their cloth.
7. After closure of the prosecution evidence, the
appellants were examined under Section 313 of the Cr.P.C
where they claimed that the prosecution evidence is false and
they are innocent and have been falsely implicated in the present
case.
8. DW-1 Ashish Thakur in his examination-in
chief stated that the alleged occurrence took place 16 years ago
at 9:00 AM. He saw that there was noise and disturbance
regarding ticket booking. He further stated that his statement has
not been given before the police. In his cross-examination, he
stated that he was not familiar with both the parties in the
dispute and he denied that the appellants along with 50-60 men,
armed with weapons, came to ghat, and the informant along
with his companions started running away. He further stated that
this is not the fact that the accused caught Subhash Yadav, beat
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him up, injured him and took him to the other side of Ganga.
9. DW-2 Chhote Lal Singh in his examination-in-
chief stated that the alleged occurrence took place 16 years ago
at 9:00 AM. He stated that he had seen the quarrel but nothing
more than altercation has took place there. His statement has not
recorded before the police. In his cross-examination, he stated
that this is not the fact that 50-60 people came with the intention
to fight and kill the Ghanshyam Yadav and Subash Yadav,
Pankaj Yadav and Md. Javed
10. DW-3 Sanjay Singh in his examination-in-
chief stated that the alleged occurrence took place 16 years ago
at 9:00 AM. Near that Ghat, he run a pan stall. He stated that on
the day of occurrence there was only verbal altercation during
booking of the ticket and nothing else. In his cross-examination
he stated that this is not the fact that his statement was recorded
before the police. He further stated that this is not the fact that
on that day 50-60 people came at ghat with the intention to fight
and denied the prosecution story.
11. Learned counsel for the appellants submitted
that the impugned judgment of conviction and order of sentence
are not sustainable in the eye of law or on facts. Learned trial
Court has not applied its judicial mind and erroneously passed
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the judgment of conviction and order of sentence and from
perusal of the evidences adduced on behalf of the prosecution it
is crystal clear that the prosecution’s case is false and fabricated.
11.i. Learned counsel for the appellants further
submitted that in the present case neither the Investigating
Officer nor the informant have been examined which is fatal for
the prosecution case. The prosecution has not examined police
officials namely Mallick, S.H.O. Parbatta police station who has
rescue the PW-1 Subhash Yadav the victim, so question of
Kidnapping could not be established by the prosecution. He also
submitted that the learned trial Court has convicted the
appellants only on the basis of deposition of PW-1 who is
known to the appellants. The learned trial Court ought to have
considered that not a single eye witness has supported the
prosecution version, contrary view taken is not sustainable in
the eye of law. The learned trial Court has convicted the
appellants only on the basis of single witness which is not
sustainable in the eye of law and erroneous in law.
11.ii. He further submitted that the prosecution
has not produced any injury report if any in connection with
injury sustained by the victim (PW-1) and neither the blood
stained clothes could be seized by the Investigating Officer nor
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the doctor has been examined in this regard. The prosecution
has also not produced any counter folio of the money receipt
hence allegation of theft also could not be provided by the
prosecution. He also submitted that the persons who were well
present at the place of occurrence with PW-1 namely Pankaj
Kumar, Md. Jawed Khan has been examined as PW-2 and 3
respectively has not supported the case of prosecution nor they
have identified any of appellants and ultimately both the
witnesses have been declared hostile. No independent witnesses
has been examined in support of prosecution as occurrence is
said to be happened in public place in presence of large people.
11.iii. He further submitted that 3 defence
witnesses have been examined in this case and they have also
not supported the case of prosecution nor they have identified
any of the appellants. Defence witnesses cannot be discarded
and its testimony should be tested in the same way as it of
prosecution witness. He also submitted that the informant has
not registered any complaint regarding earlier dispute on a day
prior to the alleged occurrence. The Informant of the present
case could not examined as he died in course of trial.
11.iv. Learned counsel for the appellants lastly
contended that in view of the aforesaid facts and circumstances,
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the prosecution has failed to prove beyond shadow of all
reasonable doubts. Hence, the prosecution case against the
appellants fails on the above mentioned grounds. So, the
appellants should have been acquitted from the conviction as
sentenced against them.
12. However, learned APP for the State defends
the impugned judgment of conviction and the order of sentence
submitting that there is no illegality or infirmity in the impugned
judgment and order of sentence, because prosecution has proved
its case against the appellants. In view of the aforesaid
statements and the evidence on record, learned trial Court has
rightly convicted the appellants and the present appeal should
not be entertained.
13. At this stage, I would like to appreciate the
relevant extract of entire evidence led by the prosecution before
the Trial Court. I have thoroughly perused the materials on
record and as well as given thoughtful consideration to the
submissions advanced by both the parties.
14. On deeply studied and scrutinized all
evidences, it is evident to note that in the present case neither
the Investigating Officer nor the informant have been examined
which is fatal for the prosecution case. The prosecution has not
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produced any injury report if any in connection with injury
sustained by the victim (PW-1) and neither the blood stained
clothe could be seized by the I.O. nor the doctor has been
examined in this regard. The persons who were well present at
the place of occurrence with PW-1 namely Pankaj Kumar, Md.
Jawed Khan has been examined as PW-2 and 3 respectively has
not supported the case of prosecution nor they have identified
any of appellants and ultimately both the witnesses have been
declared hostile. No independent witnesses has been examined
in support of prosecution case in spite of the fact that occurrence
happened in public place in presence of large number of people.
Moreover, there was substantial inconsistency in the deposition
of PW-1 in para no.1 of his deposition he stated that the amount
present in the money box is Rs. 3,000/- and in para no.2 he
stated that there was Rs. 1,000/- in money box.
15. The Investigating Officer has not been
examined during the course of trial and non-examination of
Investigating Officer is fatal to the case of the prosecution. The
Supreme Court in Habeeb Mohammad vs The State of
Hyderabad 1954 AIR 51, 1954 SCR 475 pointed out that-
“It was the duty of the prosecution to
examine all material witnesses who could
give an account of the narrative of the
events on which the prosecution is
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depended on the circumstances of each
case. In our opinion, the appellant was
considerably prejudiced by the omission on
the part of the prosecution to examine
Biabani and the other officers in the
circumstances of this case and his
conviction merely based on the testimony of
the police jamedar, in the absence of
Biabani and other witnesses admittedly
present on the scene, cannot be said to have
been arrived at after a fair trial,
particularly when no satisfactory
explanation has been given or even
attempted for this omission. A police
Jamedar in the absence of Biabani and
other witnesses admittedly present on the
scene, cannot be said to have been arrived
at after a fair trial, particularly when no
satisfactory explanation has been given or
even attempted for this omission.”
16. The Hon’ble Apex Court in the case of
Munna Lal Vs. State of Uttar Pradesh, reported in 2023 SCC
OnLine SC 80 whose relevant paragraph Nos.- 28 and 39 of the
said judgment are reproduced here-in-below:
“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. Needless to observe, such
principles have evolved over the years and
crystallized into ‘settled principles of
law.’These are:
(a)………
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(b)………
(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)………
“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
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obtaining in each case. The reason why the
Investigating Officer could not depose as a
witness, as told by PW-4, is that he had
been sent for training. It was not shown that
the Investigating Officer under no
circumstances could have left the course for
recording of his deposition in the trial
court. It is worthy of being noted that
neither the trial court nor the High Court
considered the issue of non-examination of
the Investigating Officer. In the facts of the
present case, particularly conspicuous gaps
in the prosecution case and the evidence of
PW-2 and PW-3 not being wholly reliable,
this Court holds the present case as one
where examination of the Investigating
Officer was vital since he could have
adduced the expected evidence His non-
examination creates a material lacuna in
the effort of the prosecution to nail the
appellants, thereby creating reasonable
doubt in the prosecution case.”
17. Further, Investigating Officer has also not
been examined during the course of trial as it was fatal since he
could have adduced the expected evidence and 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 and the learned trial Court failed
to scrutinize the evidence brought on record regarding
deficiencies, drawbacks and infirmities crept during course of
trial and passed the impugned judgment in complete ignorance
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of criminal jurisprudence.
18. The Investigating Officer would have stated
about the nature of the weapon used and the severity of the
injuries inflicted. It is highly improbable that the dispute has
arose on such a petty issue, therefore the investigating officer
would have brought the real cause for the altercation and the
assault. Therefore, the Investigating Officer’s testimony was
crucial for establishing the facts of the case, including the
collection of the evidences, the credibility of the witness’s
statement and overall integrity of the investigation. the
prosecution has not succeeded in proving the charges against the
appellants reasonably and beyond shadow of all reasonable
doubts.
19. Considering this fact, prosecution has failed
to establish this case beyond all reasonable doubts, therefore, in
such circumstances, the benefit of doubt inclined in the favour
of appellants it may not be proper to convict the appellants on
the materials available on record. Hence, the judgment of
conviction and order of sentence in this present matter is fit to
be set aside.
20. Hence, the judgment and order of conviction
dated 09.06.2011 / 15.06.2011 passed by the learned Additional
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Sessions Judge, Fast Track Court- Vth, Bhagalpur in Sessions
Trial No. 20 of 2007, is set aside and the accused/appellants are
acquitted from the charges leveled against them. As the
appellants are on bail, they are discharged from liability of their
bail bonds.
21. Accordingly, this appeal stands allowed.
22. Office is directed to send back the trial court
records and proceedings along with a copy of this judgment to
the trial court, forthwith, for necessary compliance, if any.
(Ramesh Chand Malviya, J)
Anand Kr.
AFR/NAFR NAFR CAV DATE 24.06.2025 Uploading Date 03.07.2025 Transmission Date 03.07.2025