Patna High Court
Shakuntala Devi vs The State Of Bihar on 7 August, 2025
Author: Sudhir Singh
Bench: Sudhir Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.801 of 2024
Arising Out of PS. Case No.-301 Year-2021 Thana- JHAJHA District- Jamui
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Shakuntala Devi W/o Late Devendra Prasad R/o Village- Dhamna, P.S.-
Jhajha, Dist.- Jamui
... ... Appellant/s
Versus
1. The State of Bihar
2. Vicky Mandal S/o Late Kamleshwasri Mandal R/o Village- Dhamna, P.S.-
Jhajha, Dist.- Jamui
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Ajay Kr. Thakur, Advocate
Mr. Prabhat Ranjan Singh, Advocate
For the Respondent No. 1 : Mr. Parmeshwar Mehta, Advocates
For the Respondent No. 2 : Mr. Sri Bidhyachal Singh, Sr. Advocates
: Mr. Vipin Kr. Singh, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH
and
HONOURABLE MR. JUSTICE RAMESH CHAND MALVIYA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAMESH CHAND MALVIYA)
Date : 07-08-2025
The present criminal appeal has been preferred
under Section 372 of the Code of Criminal Procedure
(hereinafter referred as ‘Cr.P.C) against the judgment of
acquittal dated 15.05.2024 passed by the learned Sessions
Judge, Jamui, in Sessions Trial No. 95 of 2022 arising out of
Jhajha P.S Case No. 301 of 2021, whereby Respondent No. 2
has been acquitted by the learned Trial Court from the charge of
Sections 302/34, 380/34, 120B/34 of Indian Penal Code
(hereinafter referred as ‘IPC).
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2. Vide order dated 29.10.2024, notice was
issued to the Respondent No. 2, upon which he appeared by
filing Vakalatnama through learned Advocate, Mr Vipin Kr.
Singh.
3. The prosecution case, in brief, is that in her
written application (Exhibit ‘P-2’) the informant, who is wife of
the deceased, has stated that on 13.10.2021 at 11:00 pm she
heard the knocking sound at the main door and the person at the
door introduced himself as Vicky Mandal, thereafter, the
husband of the informant, namely, Devendra Prasad opened the
door whereupon co-accused Vicky Mandal came inside the
house along with Mantu Mandal (respondent no. 2) and two
unknown persons. It is alleged that Vicky Mandal having katta
in his hand, Mantu Mandal having an iron rod in his hand and
the other two unknown persons having katta in their hands
attacked her husband. When the informant protested, the
accused persons tied the informant as well as her husband with
rope and they assaulted the husband of the informant leading to
his death. The accused persons, thereafter entered the room
where they broke open the lock of godrej and looted gold and
silver ornaments worth Rs. 20,00,000/- as also Rs. 2,00,000/- in
cash. The accused persons also took away with them LED TV,
two monitors, 4 mobile phones and several important
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documents, such as passbook, ATM, LIC papers, land registry
documents and Bolero-SLX documents, etc. According to the
informant, the alleged incident took place at the instance of one
Deosharan Singh and Jayanti Devi, the Bhaisur and the Gotni of
the informant respectively because these two persons had
threatened the informant and her husband of dire consequences
over a land dispute.
4. On the basis of written complaint of the
informant, Jhajha P.S Case No. 301 of 2021 was instituted under
Sections 302/34, 380/34, 120B/34 of IPC and investigation was
taken up by the police. The police after investigation submitted
charge-sheet against Respondent No. 2 and, accordingly,
cognizance was taken. Thereafter the case was committed to the
Court of Sessions. Charges were framed against the accused
person to which he pleaded not guilty and claimed to be tried.
5. During the course of trial, the prosecution
examined altogether thirteen witnesses, out of them, PW1
Bikram Kumar, PW2 Shweta Kumari, PW3 Rajesh Kumar,
PW4 Shakuntala Devi, PW5 Rakesh Ranjan, PW6 Rajiv
Ranjan, PW7 Dr. Arvind Kumar, PW8 Rajesh Sharan
(Investigating Officer), PW9 Pramod Kumar Singh (Store
Incharge Jhajha P.S), PW10 Rajesh Paswan (ASI Khaira P.S),
PW11 Krishna Kumar (Seizure-list witness), PW12 Dayanand
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Kumar (Seizure-list witness), PW13 Mukesh Kumar Singh.
6. In criminal appeal against acquittal what the
Appellate Court has to examine is whether the finding of the
learned court below is perverse and prima facie illegal. Once the
Appellate Court comes to the finding that the grounds on which
the judgment is based is not perverse, the scope of appeal
against acquittal is limited considering the fact that the legal
presumption about the innocence of the accused is further
strengthened by the finding of the Court. At this point, it is
imperative to consider the decision of the Hon’ble Supreme
Court in the case of Surajpal Singh & Ors. Versus The State
reported in 1952 SCR 193, paragraph 13 of which reads as
under: “..the High court has full power to review the evidence
upon which the order of acquittal was founded. But it is equally
well settled that the presumption of innocence of the accused is
further reinforced by his acquittal by the trial Court and the
findings of the trial Court which had the advantage of seeing the
witnesses and hearing their evidence can be reversed only for
very substantial and compelling reasons.”
7. In the case of Ghurey Lal versus State of
Uttar Pradesh reported in (2008) 10 SCC 450 in paragraph 75,
the Hon’ble Supreme Court reiterated the said view and
observed as under: “The trial Court has the advantage of
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watching the demeanor of the witnesses who have given
evidence, therefore, the appellate court should be slow to
interfere with the decisions of the trial court. An acquittal by the
trial court should not be interfered with unless it is totally
perverse or wholly unsustainable.”
8. On meticulous examination of the evidences
adduced, it is worth to note that the learned trial court has
carefully examined the oral testimony of all the thirteen
prosecution witnesses and recorded that PW4 who is the
informant of the case is said to be the only eye witness and the
rest other witnesses are only hearsay witnesses. The learned trial
Court has noticed the cardinal principle of law that in a criminal
trial, the prosecution has to succeed on its own leg and by
pitching it’s case beyond the shadow of all reasonable doubts. It
must fall in the realm of ‘must be true’ category and not rest
contented by leaving it in the domain ‘may be true’. The learned
trial Court has found that there are material inconsistencies and
contradictions in the evidence of the sole eye witness, hence,
she cannot be wholly relied upon. There is also an inordinate
delay and unsatisfactory explanation for the delay of almost 21
hours in institution of the FIR. The prosecution case is suffering
from mist of doubt about the manner and genesis of the
occurrence and in such circumstances, the benefit of doubt has
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to go to the accused. We find no reason to take any other view
with regard to these findings of the learned trial Court.
9. We examined the entire evidence availble on
the record and is of the considered opinion that not only there is
an inordinate delay in submission of the written report by the
informant, there is also ante-timing on the seizure list and the
evidence of the sole eye witness (PW4) contains contradictions
which are vital and would create a dent in the prosecution case.
This Court further finds that in the written report which was
lodged after 21 hours of the occurrence and in presence of her
well educated son who had written the report and the informant
has stated that Vicky Mandal had a ‘Katta’ in his hand whereas
other co-accused, namely, Mantu Mandal had an ‘iron rod’ in
his hand, two unknown persons had ‘Katta’ in their hand and all
of them assaulted the husband of the informant. In her
examination-in-chief also PW-4 stated that the accused were
armed with ‘Katta’ and ‘iron rod’ but this time she has not stated
that they started assaulting with those weapons. She has stated
that all the four accused had taken her husband in their control,
indulging physically and had brought him in the courtyard
where he was slammed down and thereafter they tied the hands
and legs of her husband and also tied his mouth by a towel and
thereafter, all the four started assaulting the deceased by a
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Kharka (a wooden tool used for closing the door). Thus, she has
not stated in her examination-in-chief that this accused had
assaulted her husband by katta. Her statement that the accused
had tied her both hands and legs and that she was pushed to the
stairs has been contradicted.
10. Further, this Court, therefore, finds that the
credibility of PW4 is not that of a sterling witness and it would
not be safe to convict the accused-respondent no. 2 on the basis
of the sole testimony of PW4 as the same is not corroborated in
material particulars from any independent evidence available on
the record and at the same time there is an inordinate delay in
submission of the written report (Exhibit ‘P-2’) which has
remained unexplained. The conduct of PW4 in maintaining
silence and not disclosing the name of the murderers even after
arrival of her son and daughter coupled with the evidence of the
I.O. that even after his asking the informant to give her
fardbeyan or a written report, she did not say about the identity
of the murderers would only lead to a conclusion that PW4 had
not seen the occurrence. PW4 was fully conscious when she had
talked to her son on mobile, she had also talked to the I.O. and
had shown him the place of occurrence, still for no plausible
reason she did not record her fardbeyan. Apparently, the FIR has
been lodged after a lot of thought process after arrival of three
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other sons of PW4 in the evening. All the sons and the daughter
have deposed in stereotype version. Even as a large crowd of
villagers were present at the place of occurrence, no
independent person has been examined by the I.O.
11. While appreciating the kind of materials on
the record, we keep in mind the ratio of the judgment of
Hon’ble Supreme Court in Sharad Birdhichand Sarda versus
State of Maharashtra reported in (1984) 4 SCC 116 and
Dilavar Hussain and Ors. v. State of Gujarat and Anr., (1991)
1 SCC 253. Paragraph ‘153’ of Sharad Birdhichand Sarda
(supra) is quoted here-under for a ready reference:-
“153. A close analysis of this decision
would show that the following conditions
must be fulfilled before a case against an
accused can be said to be fully established
(1) the circumstances from which the
conclusion of guilt is to be drawn should be
fully established. It may be noted here that
this Court indicated that the circumstances
concerned “must or should” and not “may
be” established. There is not only a
grammatical but a legal distinction between
“may be proved” and “must be or should
be proved” as was held by this Court in
Shivaji Sahabrao Bobade v. State of
Maharashtra (1973) 2 SCC 793: 1973 SCC
(Cri) 1033: 1973 Cri LJ 1783 where the
following observations were made: [SCC
para 19, p. 807: SCC (Cri) p. 1047]
“Certainly, it is a primary principle that the
accused must be and not merely may be
guilty before a court can convict and the
mental distance between ‘may be’ and
‘must be’ is long and divides vague
Patna High Court CR. APP (DB) No.801 of 2024 dt.07-08-2025
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(2) the facts so established should be
consistent only with the hypothesis of the
guilt of the accused, that is to say, they
should not be explainable on any other
hypothesis except that the accused is guilty,
(3) the circumstances should be of a
conclusive nature and tendency,
(4) they should exclude every possible
hypothesis except the one to be proved, and
(5) there must be a chain of evidence so
complete as not to leave any reasonable
ground for the conclusion consistent with
the innocence of the accused and must show
that in all human probability the act must
have been done by the accused.”
12. Thus, on the basis of the evidence based on
record and the ratio laid down by the hon’ble supreme court in
various cases on circumstantial evidence, it is held that the
charges against the accused/respondent is not proved beyond
shadow all reasonable doubt and the necessary elements
mentioned in the charged sections are lacking to hold them
guilty under the charged sections. In the totality of the
circumstances which are appearing from the evidences on the
record, we are of the considered opinion that the learned trial
Court has not committed any error in appreciation of the
evidences.
13. We are dealing with an appeal against
acquittal and shall keep in mind the principles governing the
cases of appeal against acquittal. The principles have been
reiterated by the Hon’ble Supreme Court in catena of decisions
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and one of them is the case of H.D. Sundara and Others vs.
State of Karnataka reported in (2023) 9 SCC 581. Paragraph ‘8’
whereof is recorded here-under for a ready reference:-
“8. In this appeal, we are called upon to
consider the legality and validity of the
impugned judgment State of Karnataka v.
H.K. Mariyapp, 2010 SCC OnLine Kar
5591 rendered by the High Court while
deciding an appeal against acquittal under
Section 378 of the Code of Criminal
Procedure, 1973 (for short “Cr.P.C“). The
principles which govern the exercise of
appellate jurisdiction while dealing with an
appeal against acquittal under Section 378
Cr.P.C can be summarized as follows:
8.1. The acquittal of the accused further
strengthens the presumption of innocence;
8.2. The appellate court, while hearing an
appeal against acquittal, is entitled to
reappreciate the oral and documentary
evidence;
8.3. The appellate court, while deciding an
appeal against acquittal, after
reappreciating the evidence, is required to
consider whether the view taken by the trial
court is a possible view which could have
been taken on the basis of the evidence on
record;
8.4. If the view taken is a possible view, the
appellate court cannot overturn the order of
acquittal on the ground that another view
was also possible; and
8.5. The appellate court can interfere with
the order of acquittal only if it comes to a
finding that the only conclusion which can
be recorded on the basis of the evidence on
record was that the guilt of the accused was
proved beyond a reasonable doubt and no
other conclusion was possible.”
14. It is a case of acquittal in which the
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presumption of innocence of the accused is, in fact, affirmed by
the learned trial Court. In fact, this Court is of the opinion that
the prosecution has failed before the learned trial Court to prove
the charges leveled against the respondent as opined by the
learned trial Court. In ultimate analysis of the entire materials
and record, we find no reason to interfere with the judgment of
the learned trial court.
15. This appeal has no merit. It is dismissed
accordingly.
(Sudhir Singh, J)
( Ramesh Chand Malviya, J)
Mayank/-
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