Patna High Court
Shankar Sahni vs The State Of Bihar on 3 July, 2025
Author: Shailendra Singh
Bench: Mohit Kumar Shah, Shailendra Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1072 of 2012
Arising Out of PS. Case No.-48 Year-2007 Thana- DIDARGANJ District- Patna
======================================================
Shankar Sahni, S/o - Rajendra Sahni, Resident of Bonstar, P.S- Didarganj,
Patna City, District- Patna.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Jai Shankar Pathak, Advocate
Ms. Swastika, Adv.
For the State : Ms. Shashi Bala Verma, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
and
HONOURABLE MR. JUSTICE SHAILENDRA SINGH
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE SHAILENDRA SINGH)
Date : 03-07-2025
Heard Mr. Jai Shankar Pathak, learned counsel
assisted by Ms. Swastika, Advocate appearing for the sole
appellant and Ms. Shashi Bala Verma, learned APP appearing
for the State.
2. The present appeal has been preferred by the sole
appellant, namely, Shankar Sahni with a prayer to set aside the
judgment dated 18.08.2012 and order of sentence dated
24.08.2012
passed by the court of learned 2nd Additional District
& Sessions Judge, Patna City, in connection with Sessions Trial
Case No. 108 of 2008 arising out of Didarganj P.S. Case No. 48
of 2007, G.R. No. 696 of 2007, whereby and whereunder the
appellant has been convicted for the offences under sections 302
Patna High Court CR. APP (DB) No.1072 of 2012 dt.03-07-2025
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and 201 of the Indian Penal Code (herein-after referred to as the
“IPC“) and sentenced to undergo rigorous imprisonment for life
under section 302 of the IPC, with fine of Rs. 50,000/- and in
default of payment of the same, the appellant has been directed
to further undergo rigorous imprisonment for three years. The
appellant has also been sentenced to undergo rigorous
imprisonment for five years under section 201 of the IPC with
fine of Rs. 5,000/- and in default of payment of the same, he has
been directed to further undergo rigorous imprisonment for one
year. Both the sentences have been directed to run concurrently.
Prosecution Story :-
3. The substance of the prosecution story is as
follows:-
As per the informant, namely, Rajendra Sahni
(examined as P.W.-8), on 16.04.2007, there was marriage
ceremony of the daughter of one Luxmi Sahni, in which he was
busy and on that day, in the night between 8 to 9 P.M., his son,
namely, Munna Sahni went missing, whereafter he searched for
him till late night 2 A.M. The next morning, he heard a hulla
raised by persons who had gone out to attend the call of nature
near the bank of river Ganga whereupon he reached near the
electric tower and found the dead body of his son lying on the
Patna High Court CR. APP (DB) No.1072 of 2012 dt.03-07-2025
3/44western side at a distance of about 10 bamboos from that
electric tower. The informant has further alleged that the mouth
of his son was full of sand and several persons had assembled
there. In the meantime, one boy, namely, Bittu Kumar (PW-9),
aged about 10 years, son of one Doman Chaudhary, resident of
village Banskothi Digha, who had come to his nanihal (parental
village of his mother), came and stated before him that Shankar
Sahni (appellant), aged about 22 years at that time, son of one
Rajendra Sahni, resident of village Banstar, had demanded
Shikhar (a kind of Gutka) at about 8 P.M. in the last night and
due to fear, he fled away from there but the appellant caught
hold of Munna Sahni (hereinafter referred to as ‘deceased or
victim’) and according to him, it was he (appellant) who had
killed the deceased. As per the informant, upon knowing about
the incident from Bittu Kumar, his villagers caught hold of the
appellant who confessed his guilt before him and the villagers,
namely, Uma Shankar Sahni, Bullu Kumar (not examined),
Deepak Kumar (PW-2), Krishna Kumar (PW-5) Tula Sahni
(PW-7) and Mani Kumar Sahni (PW-3), all residents of Banstar
village and also before others and in the meantime, the police
came. As per the informant, when the appellant was caught,
besides confessing his guilt, he also revealed the reason behind
Patna High Court CR. APP (DB) No.1072 of 2012 dt.03-07-2025
4/44his act of murder and he stated that the informant’s wife
(deceased’s mother) had helped in fleeing of his sister 10-15
days before the alleged incident, due to which, being enraged,
he has killed the deceased by filling sand in his mouth and
pressing his neck and thereafter, he had fled away.
4. Giving the details of the aforesaid facts, the
informant recorded his fardbeyan on 17.04.2007 at 7:45 A.M.
before a police inspector of Didarganj police station. On that
basis, the formal FIR bearing Didarganj P.S. Case No. 48 of
2007 was registered for the offences under sections 302 and 201
of the Indian Penal Code (in short ‘IPC‘) against the sole
accused, who is the appellant herein, which set the criminal law
in motion.
5. After completion of the investigation, the
appellant was chargesheeted for the offences under sections 302
and 201 of IPC vide chargesheet No. 60/07 dated 18.04.2007
which shows that the investigation was completed within 24
hours from the time of registration of FIR. Thereafter, the
learned Magistrate took cognizance of the alleged offences, for
which the appellant had been chargesheeted, vide order dated
21.04.2007 and finding the alleged offences to be triable by the
court of Sessions, he committed the case of the appellant to the
Patna High Court CR. APP (DB) No.1072 of 2012 dt.03-07-2025
5/44court of Sessions for trial, whereafter the case was numbered as
Sessions Trial No. 108 of 2008.
6. The appellant was charged with the offences
under sections 302 and 201 of IPC by the trial court and the said
charges were read over and explained to him in Hindi, to which
he pleaded not guilty and claimed to be tried for the charged
offences.
7. During the trial, the prosecution produced and
examined the following thirteen witnesses :
PW-1 Uma Shankar Sahni, a villager of the informant
PW-2 Deepak Kumar, a villager of the informant
PW-3 Mani Sahni, a villager of the informant
PW-4 Rajesh Sahni, a villager of the informant
PW-5 Krishna Kumar, a villager of the informant
PW-6 Keshwar Sahni, a villager of the informant
PW-7 Tula Sahni, a villager of the informant
PW-8 Rajendra Sahni, informant
PW-9 Bittu Kumar, the maternal nephew of the deceased
PW-10 Jai Krishna Bihari Prasad, the investigating officer
PW-11 Dr. Radha Raman Singh, who conducted postmortem
examination of the deceased
PW-12 Parmanand Singh, a formal witness
PW-13 S.N. Ram, then Judicial Magistrate, who recorded the
confessional statement of Shankar Sahni (appellant) under
section 164 of Cr.P.C.
8. In documentary evidence, the prosecution proved
the following documents and got them marked as exhibits which
are as under : –
Ext. -1 The signature of a witness, namely, Uma Shankar Sahni (PW-1)
on the fardbeyan
Ext. -1/1 The signature of a witness, namely, Mani Kumar Sahni (PW-3)
on the fardbeyan
Patna High Court CR. APP (DB) No.1072 of 2012 dt.03-07-2025
6/44Ext. -1/ 2 The signature of a witness, namely, Rajesh Sahni (PW-4) on the
seizure list
Ext. -2 Written report
Ext. -3 The carbon copy of the inquest report
Ext. -4 The seizure list
Ext. -5 Formal FIR
Ext. -6 Postmortem report of the deceased
Ext. -7 The statement of the accused/appellant recorded under section
164 of Cr.P.C.
9. After the completion of prosecution’s evidences,
the statement of the appellant was recorded by the trial court
under section 313 of the Code of Criminal Procedure (in short
‘Cr.P.C.’) giving him an opportunity to explain the main
circumstances appearing against him from the prosecution’s
evidences which were denied by him. While recording the said
statement, the appellant claimed himself as an innocent person
and in respect of his confessional statement recorded under
section 164 of Cr.P.C., he stated that owing to the fear of one
Moti Sahni, who was the elder uncle of the deceased, he
confessed the offences in the court.
10. In defence, the appellant did not give any
evidence.
11. While convicting the appellant, the learned trial
court mainly took into account the confession made by the
appellant before the Judicial Magistrate under section 164 of
Cr.P.C. and deemed the material facts stated by the prosecution
witnesses PW-1 to PW-9 as having remained unchallenged in
Patna High Court CR. APP (DB) No.1072 of 2012 dt.03-07-2025
7/44their cross-examination, who supported the case of prosecution
in their examination-in-chief.
Submissions made on behalf of the appellant :-
12. Learned counsel appearing for the appellant has
argued that in the present matter, there is no eyewitness of the
alleged occurrence of murder and the case of prosecution is
based on circumstantial evidences but all the links to constitute
the complete chain of all alleged material circumstances are not
complete, so, in the light of the principles laid down by the
Hon’ble Apex Court in the judgment passed in the case of
Sharad Birdhichand Sarda vs. State of Maharashtra
reported in (1984) 4 SCC 116, the appellant ought to have not
been held guilty by the trial court as the prosecution failed to
show that all the alleged circumstances were conclusive and
consistent only with the hypothesis of the guilt of the appellant.
In support of this submission, the learned counsel has referred to
paragraph Nos. 153 and 154 of the said cited judgment, which
are being reproduced as under for 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
Patna High Court CR. APP (DB) No.1072 of 2012 dt.03-07-2025
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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 Crl LJ 1783] where the
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 conjectures from sure
conclusions.”
(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.
154. These five golden principles, if we may
say so, constitute the panchsheel of the proof of a case
based on circumstantial evidence.”
It has been further argued that as per the prosecution
story, the appellant firstly took the victim to the shop of one
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person, namely, Ajay Kumar, from where the deceased was
taken towards the bank of the Ganga river and since then he
went missing, so, the said Ajay Kumar was the person who
lastly saw the victim in alive position in the company of the
appellant and he was the best person to establish the main
circumstance of last seen of the deceased with the appellant,
which has not been proved by the prosecution by producing and
examining the said Ajay Kumar.
Learned counsel further argued that the learned trial court
mainly placed reliance upon the appellant’s own statement
recorded under section 164 of Cr.P.C., deeming it as his
confession before the Judicial Magistrate but did not examine
the voluntariness and truthfulness of the said confession and
further, there was no corroboration to the appellant’s said
confession by a reliable evidence, so, the approach of the
learned trial court while appreciating the appellant’s own
statement recorded under section 164 of Cr.P.C. was completely
wrong and also against the established principles of law. In
support of this contention, the learned counsel has placed
reliance upon the judgment of the Hon’ble Apex Court passed in
the case of S. Arul Raja vs. State of Tamil Nadu, reported in
2010 (4) PLJR (SC) 25 and has referred the paragraph No. 43
Patna High Court CR. APP (DB) No.1072 of 2012 dt.03-07-2025
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of the said judgment which is being reproduced as under for
ready reference :-
“43. section 164 Cr.P.C. provides guidelines to be
followed for taking the statement of the accused as a
confession. The one essential condition is that it must be
made voluntarily and not under threat or coercion. This
Court in Aloke Nath Dutta & Ors. vs. State of West Bengal
reported in (2007) 12 SCC 230 held as under :-
“87. Confession ordinarily is admissible in
evidence. It is a relevant fact. It can be acted upon.
Confession may under certain circumstances and subject to
law laid down by the superior judiciary from time to time
form the basis for conviction. It is, however, trite that for
the said purpose the court has to satisfy itself in regard to:
(i) voluntariness of the confession; (ii) truthfulness of the
confession; (iii) corroboration.
88. This Court in Shankaria v. State of
Rajasthan stated the law thus: (SCC p. 443, para 22)“22. This confession was retracted by
the appellant when he was examined at the trial under
section 311 CrPC on 14.6.1975. It is well settled that a
confession, if voluntarily and truthfully made, is an
efficacious proof of guilt. Therefore, when in a capital case
the prosecution demands a conviction of the accused,
primarily on the basis of his confession recorded under
section 164 CrPC, the court must apply a double test:
(1) Whether the confession was
perfectly voluntary?
(2) If so, whether it is true and
trustworthy?
Satisfaction of the first test is a sine qua non for its
admissibility in evidence. If the confession appears to the
Patna High Court CR. APP (DB) No.1072 of 2012 dt.03-07-2025
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court to have been caused by any inducement, threat or
promise such as is mentioned in section 24, Evidence Act, it
must be excluded and rejected brevi manu. In such a case,
the question of proceeding further to apply the second test,
does not arise. If the first test is satisfied, the court must,
before acting upon the confession reach the finding that
what is stated therein is true and reliable. For judging the
reliability of such a confession, or for that matter of any
substantive piece of evidence, there is no rigid canon of
universal application. Even so, one broad method which
may be useful in most cases for evaluating a confession may
be indicated. The court should carefully examine the
confession and compare it with the rest of the evidence, in
the light of the surrounding circumstances and probabilities
of the case. If on such examination and comparison, the
confession appears to be a probable catalogue of events
and naturally fits in with the rest of the evidence and the
surrounding circumstances, it may be taken to have
satisfied the second test”.”
Learned counsel has further argued that in the present
matter, prosecution witness Bittu Kumar (PW-9) is said to be the
star witness of the prosecution but his evidence cannot be
deemed to be admissible in the eye of law due to two reasons.
Firstly, his statement was not recorded under section 161 of
Cr.P.C. by the I.O. and secondly, he was not a competent witness
in light of the provisions contained in section 118 of the Indian
Evidence Act as he was a child witness at the time of recording
of his evidence and the learned trial court did not examine his
competency as a witness in proper manner. In support of this
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submission, learned counsel has placed reliance upon the
judgment of the Hon’ble Apex Court passed in the case of
Pradeep vs. State of Haryana reported in AIR 2023 SC 3245
and has referred to paragraphs Nos. 9, 10 & 11 of the said
judgment, which are being reproduced herein below :-
“9. Before recording evidence of a minor, it is
the duty of a Judicial Officer to ask preliminary questions to
him with a view to ascertain whether the minor can
understand the questions put to him and is in a position to
give rational answers. The Judge must be satisfied that the
minor is able to understand the questions and respond to
them and understands the importance of speaking the truth.
Therefore, the role of the Judge who records the evidence is
very crucial. He has to make a proper preliminary
examination of the minor by putting appropriate questions
to ascertain whether the minor is capable of understanding
the questions put to him and is able to give rational
answers. It is advisable to record the preliminary questions
and answers so that the Appellate Court can go into the
correctness of the opinion of the Trial Court.
10. In the facts of the case, the preliminary
examination of the minor is very sketchy. Only three
questions were put to the minor on the basis of which the
learned Sessions Judge came to the conclusion that the
witness was capable of giving answers to each and every
question. Therefore, the oath was administered to him.
Following are the questions put to him:–
“Q. In which school you are studying?
Ans. I am studying in Govt. Primary School, Barwashni.
Q. What is occupation of your father?
Ans. My father is a Pujari in a Mandir named
Hanuman, at Gohanba.
Q. Should one speak truth or false?
Ans. Truth.”
11. We are of the view that the learned Sessions Judge
has not done his duty. Nevertheless, we have carefully
scrutinised the evidence of the minor witness Ajay. In the
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examination-in-chief, he stated that on the night of 30 th
December 2002, the accused entered his house by breaking
a window. While the appellant held his mother by his hands,
accused no. 1 assaulted her with a knife. When he tried to
rescue his mother, accused no. 1 gave a blow on his back by
knife. He stated that he was hiding in the house after the
accused fled and he disclosed the incident to milkman
Surender who came to the house at 5 a.m. In the
examination-in-chief, he deposed about the incident of
cutting of crops on their family land by accused nos. 1 and
2, which had taken place 6 to 7 months prior to the date of
the offence. He stated that though the accused indulged in
the said act, no action was taken as the appellant’s father
apologised. In the cross-examination when the witness was
confronted with his statement recorded by the police, he
admitted that this incident was not recorded therein. In the
cross-examination, the witness volunteered that the accused
present in the Court had murdered his mother and they were
drunk. However, he accepted that the allegation that the
accused were drunk was not recorded in his statement
recorded by the police.”
Submissions made on behalf of the State:-
13. On the other hand, Ms. Shashi Bala Verma,
learned APP appearing for the State has argued that though the
instant matter is based on circumstantial evidences but all the
material circumstances to complete the entire chain were
established by the prosecution before the trial court by adducing
sufficient number of witnesses and the most important material
going against the appellant is his own confession before the
Judicial Magistrate and the same gets corroboration from the
medical evidence given by Dr. Radha Raman Singh (PW-11),
who conducted the postmortem examination over the body of
Patna High Court CR. APP (DB) No.1072 of 2012 dt.03-07-2025
14/44the deceased and also from the evidence of PW-1, PW-2, PW-3,
PW-5 and PW-7, before whom the appellant accepted his guilt
when he was first caught by his co-villagers just next day of the
victim having gone missing. The said confession is completely
reliable and trustworthy and the learned Magistrate complied
with all the mandatory requirements mentioned under section
164 of Cr.P.C. while recording the appellant’s confession and at
that time, the appellant was not under any influence of the
police or any person as he was in judicial custody at that time
and there are sufficient materials to deem the appellant’s
confession as having been made by him voluntarily, hence, the
learned trial court rightly convicted the appellant for the charged
offences and there is no scope to interfere with the same.
Consideration and Analysis:-
14. We have heard both the sides and perused the
judgment impugned as well as the evidences adduced by the
prosecution which are available on the record of trial court and
also gone through the statement of appellant.
15. Before us, the main points for consideration are:-
(i) whether the prosecution succeeded in
establishing all the circumstances, which according to the
prosecution, are clearly indicative of the guilt of the appellant in
Patna High Court CR. APP (DB) No.1072 of 2012 dt.03-07-2025
15/44the commission of the alleged murder of the deceased and
whether there is no scope of any reasonable doubt and whether
the circumstances which are claimed as having been established
by the prosecution are so consistent that only hypothesis of the
guilt of the appellant can be made;
(ii) Whether the appellant’s statement recorded by the
Judicial Magistrate (PW-13) comes in the purview of a
confession, if yes, then whether it was recorded in proper
manner by Magistrate as per the provisions of sections 164 and
281 of Cr.P.C. and whether it can be deemed to be trustworthy,
reliable and having been made by the appellant voluntarily
without any influence and whether the said confession in itself
is sufficient to convict the appellant for the charged offences or
not.
16. From the prosecution story, the following main
circumstances have emerged out :-
(a) On 16.04.2007, there was a marriage ceremony of
the daughter of one person, namely, Luxmi Sahani and on that
day, the informant was busy in the said ceremony.
(b) On 16.04.2007, in the night, the informant’s son
aged about eight years (deceased) went missing, who was
searched by the informant and others till late night.
Patna High Court CR. APP (DB) No.1072 of 2012 dt.03-07-2025
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(c) On the morning of 17.04.2007 i.e. the next day of
the day when the deceased went missing, the dead body of the
deceased was found near an electric tower by the villagers.
(d) The victim’s mouth was found filled with sand.
(e) Several persons assembled at the place of
occurrence and during the course thereof, one boy namely, Bittu
Kumar (PW-9), aged about 10 years, came and revealed the
initial alleged role of the appellant in commission of the
occurrence.
(f) According to the said Bittu Kumar (PW-9), the
appellant first demanded Shikhar (Gutka) from him, though he
managed to escape by fleeing away but the deceased was taken
by the appellant.
(h) The appellant was caught hold by the villagers
and before informant and PWs-1, 2, 3, 5, 7 and others, the
appellant accepted his guilt.
17. Now, we would discuss the evidences given by
the prosecution’s witnesses to find out whether the aforesaid
circumstances can be deemed as having been established by
their evidences or not.
18. The prosecution witness Uma Shankar Sahni
(PW-1) deposed in the examination-in-chief that the alleged
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occurrence took place on 16.04.2007, on that day, there was a
marriage ceremony in the house of Luxmi Sahani and during
that course, Munna Sahni (deceased) went missing, who was not
found despite searching him and on 17.04.2007, in the morning
while he was going towards the bank of Ganga river to attend
the call of nature, he heard hulla and when he went near the
electric tower, he saw the dead body of the deceased lying there.
He further deposed that in the meantime, Bittu Kumar (PW-9),
maternal grandson of the brother of the informant, came and
revealed that in the late last night, the appellant Shankar Sahni
told him to bring Shikhar and then he (appellant) took the
deceased with him to bring Biscuit but he fled away and the
deceased was taken by him (appellant). He further stated that on
search, the appellant was caught, who suspected that it was the
deceased’s mother who had helped in fleeing of his sister, so,
due to this reason, he had killed the deceased. He further stated
in his examination-in-chief that before the police, the appellant
accepted his guilt also. This witness identified his signature
being made by him on the fardbeyan of the informant, which
was marked as Ext.-1. Regarding these facts as stated by this
witness in the examination-in-chief, no cross-examination was
done by the defence. In the cross-examination only one question
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was put to which this witness stated that he had no any enmity
with the accused/appellant.
19. The prosecution witness PW-2, namely, Deepak
Kumar deposed in his examination-in-chief, similar facts as
stated by PW-1 such as regarding the marriage ceremony in the
house of one Luxmi Sahni being solemnized on 16.04.2007 as
well as the factum of missing of the deceased on that day and
regarding the other relevant facts, he deposed that in the
morning of 17.04.2017, he and Uma Shankar Sahni (PW-1)
went outside to attend the call of nature then he heard a hulla
about the presence of a dead body and when he went there,
Bittu Kumar (PW-9) had also arrived there, who told that in the
last night, he (PW-9) and the deceased were playing then the
appellant took them to a Gutka shop, from where he managed to
flee away but the deceased remained with the appellant. He
further deposed that in the course of search, the appellant
revealed that he had killed the deceased. Regarding the motive
of the appellant to commit the alleged murder as stated by PW-
1, the same motive was also revealed by this witness in his
examination-in-chief and he stated that the appellant confessed
his guilt before the police. This witness also identified the
appellant in the court room of the trial court. In the cross-
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examination, he stated that he saw the dead body of the
deceased lying near the bank of Ganga river and Uma Shankar
Sahni (PW-1) had seen the dead body before him. He further
stated in his cross-examination that he had no enmity with the
appellant. Regarding the material facts upon which the case of
the prosecution is based, as stated by this witness in his
examination-in-chief, no cross-examination was made by the
defence counsel before the trial court.
20. The prosecution witness Mani Sahni (PW-3)
stated in his examination-in-chief that the occurrence took place
in the night of 16.04.2007, on that day, there was a marriage
ceremony of the daughter of Luxmi Sahani and in the meantime,
Munna Kumar (deceased) went missing and then he was
searched but he was not found in the whole night and on the
next day, he (PW-3) got an information that a dead body had
been found near the electric tower and upon getting the said
information, he went there and identified the dead body as being
that of Munna Kumar and at that time, the age of the deceased
was 8 years. This witness further deposed in his examination-in-
chief that Bittu Kumar (PW-9) came and informed that the
deceased had been taken by the appellant to a Gutka shop in the
last night and at that time, he (PW-9) managed to flee away but
Patna High Court CR. APP (DB) No.1072 of 2012 dt.03-07-2025
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the deceased was taken by the appellant and on 17.04.2007
during the course of search the appellant was found and on
interrogation, the appellant stated that he had killed the victim
on account of the deceased’s mother having helped in the
fleeing of his sister. This witness further stated in his
examination-in-chief that the appellant accepted his guilt before
the police also. This witness identified his signature on the
fardbeyan which was marked as Ext.- ‘1/1’ and he also
identified the appellant in the court room. In his cross-
examination, he stated that he had no any enmity with the
appellant and the dead body was seen at 7 A.M. in the morning
near the tower.
21. The prosecution witness Rajesh Sahni (PW-4) is
mainly a witness of the seizure of a small rope and a
handkerchief. He stated in his examination-in-chief that the
alleged occurrence took place on 16.04.2007 and in the morning
of 17.04.2007, he heard hulla about a dead body being thrown,
then he went to the place of occurrence and found the body of
the deceased there and after sometime the police arrived and a
small rope measuring 1½ to 2 feet and a blue colour
handkerchief were seized from the place of occurrence, of
which the seizure list was prepared before him. This witness has
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identified his signature on the said seizure list which was
marked as Ext.- ‘1/2’. In his cross-examination, he stated that
the alleged occurrence took place on 17.04.2007 at 5:00 A.M
and at that time he had gone to attend the call of nature, when he
heard hulla. He further stated that he had no enmity with the
appellant.
22. The prosecution witness Krishna Kumar (PW-
5) stated in his examination-in-chief that the alleged occurrence
took place on 16.04.2007 and on that day, there was a marriage
ceremony of the daughter of Luxmi Sahani and he was present
in that ceremony. The appellant, Munna Kumar (deceased) and
the deceased’s family members were also present there. He
further stated that the victim’s grandmother was searching for
the victim and in the morning of 17.04.2007, a dead body was
found lying near the electric tower on the bank of river Ganga
and thereafter, he and others reached there and identified the
dead body as being that of the victim and in the meantime, Bittu
Kumar (PW-9) arrived there and revealed that he and the
deceased were taken by the appellant to bring Gutka but he
managed to flee away on the way and the appellant took the
deceased with him. He further stated that the mother of the
deceased and the appellant’s sister did labour work together and
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the appellant’s sister had fled away with a boy, for which, the
appellant suspected the mother of the deceased to be involved in
the fleeing of his sister. This witness further stated in his
examination-in-chief that during the course of search, the
appellant was found and upon interrogation, he accepted before
the villagers that he had killed the deceased and in the meantime
the police had also arrived, before whom too the appellant
accepted his guilt. In his cross-examination, this witness stated
that he had no enmity with the appellant and the appellant
accepted his guilt before him and others and he had seen the
deceased’s mouth being filled with sand and there was no
previous enmity between the appellant’s sister and the
deceased’s mother.
23. The prosecution witnesses Keshwar Sahni (PW-
6) and Tula Sahni ( PW-7) deposed almost in the same manner
like the abovementioned witnesses and revealed in their cross-
examination that they had no enmity with the appellant. In the
examination-in-chief they stated that the appellant accepted his
guilt in the commission of the alleged murder.
24. The prosecution witness Rajendra Sahni (PW-8)
is the informant of the present matter as well as the father of the
deceased. In the examination-in-chief, he stated that on
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16.04.2007 there was a marriage ceremony of the daughter of
Luxmi Sahani, in which he, Munna Kumar (deceased), Bittu
Kumar (PW-9) and the appellant were also present and the
guests of the marriage came at 8 P.M and after taking the dinner
he went to his house at 10 P.M. then he found that his mother
was searching for his son (victim). He had also searched for his
son but he was not found at that time and on the next day, he
heard hulla about the dead body of a boy lying near the electric
tower, whereafter he went there and saw the dead body of his
son and at that time, the persons of his mohalla had also come
and in the meantime, Bittu Kumar (PW-9) arrived and revealed
that he and the deceased (victim) were taken by the appellant for
buying Gutka and biscuit but he managed to flee away while the
victim was taken by the appellant. This witness further deposed
in the examination-in-chief that during the course of search, the
appellant was found and upon interrogation, the appellant
accepted that he had killed the victim. Regarding the motive of
the appellant to commit the alleged occurrence, this witness
revealed the same reason as stated by other witnesses. He
further stated in his examination-in-chief that he informed the
police, which arrived and recorded his fardbeyan and the same
was read over to him and thereafter, he had made his thumb
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impression upon it. In his cross-examination, he stated that the
incident took place in the night and the dead body of his son
was found near the electric tower on the bank of river Ganga
and the appellant accepted his guilt before him as well as the
people of his mohalla and near the dead body, one rope made of
Nebar, 1½ hand long and one blue colour handkerchief were
recovered. He stated in the cross-examination that he had no
enmity with the appellant.
25. The prosecution witness Bittu Kumar (PW-9) is
the most important witness of the prosecution. As per the
prosecution story, he was the person who saw the victim lastly
with the appellant and his evidence is also important with regard
to the conduct of the appellant. He deposed in the examination-
in-chief that the deceased was his uncle and at the time of the
death of the deceased, he was at the house of his maternal
grandmother and on that day there was a marriage ceremony of
the daughter of Luxmi Sahani and he and the deceased were
also present there and they were playing. In the meantime, the
appellant came and asked them to accompany him to a shop,
whereafter he and the deceased along with the appellant went to
the shop of one person, namely, Ajay Ji where the appellant
purchased biscuit and gutka and after that the appellant asked
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them to go towards the bank of river Ganga for walking, he
(PW-9) fled away and the deceased was taken away by the
appellant and at that time he became afraid so, in the night, he
did not tell anyone about the said facts. He had further stated in
his examination-in-chief that on the next day, upon hearing
hulla, he went near the tower and saw the dead body of the
deceased lying there and at that time, he revealed before the
villagers about the act of the appellant. Only one question was
put before this witness in his cross-examination by the defence
upon which he stated that the incident had taken place one year
back and the appellant killed the deceased near the tower in the
night.
26. The prosecution witness Jai Krishna Bihari
Prasad (PW-10) is the investigating officer. He deposed in his
examination-in-chief that on 17.04.2007 he got the information
that one child had been killed and regarding that information, a
Sanha bearing No. 420/2007 was entered with date 17.04.2007
and thereafter, for necessary action, he along with Station House
Officer (SHO) and other police personnel went to the place of
occurrence and the SHO, Suresh Kumar Singh, recorded the
fardbeyan of the informant at the place of occurrence. This
witness has identified the said fardbeyan which was marked as
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Ext.- ‘2’. He further stated that the inquest report of the
deceased was also prepared by him and he identified the carbon
copy of the said inquest report and according to him, the carbon
copy was prepared with the original inquest report. The inquest
report was exhibited as Ext.- ‘3’. He stated that he inspected the
place of occurrence which was situated behind an iron factory at
a distance of 500 Gaj from Banstar village and the informant’s
house was situated at a distance of 500 Gaj on the western side
of the place of occurrence and 200 Gaj on the western side of
the electric tower and the dead body was found in a ditch. This
witness further stated that the informant himself produced the
handkerchief and rope, which were seized by making a seizure
list. The said seizure list was proved by this witness and the
same was marked as Ext. ‘4’. In his cross-examination, this
witness stated that the rope, which was made of Puaal and the
handkerchief were found near the dead body.
27. The prosecution witness Dr. Radha Raman
Singh (PW-11) is a medical expert who conducted the
postmortem examination of the dead body of the deceased and
upon external examination, he found multiple abrasions around
both angles of mouth, size of which was ranging from 3 cm x
1cm to ½ cm x ½ cm and these were also found on the right side
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of face. Upon internal examination, he gave the following
findings : –
(i) The viscera were found congested, heart chambers were
full, Bladder was empty, stomach content was about 1 ml, some digested
rice food stuff.
(ii) In oral cavity, esophagus and in tracheal tube massive
amount of soil and sand were found.
(iii) Bruise was found on left parietal region on the area of
3cm x 2cm, on right temporal region on the area of 2 cm x 2 cm, subdural
hemorrhage was found.
(iv) Viscera were preserved.
This witness proved the postmortem report which was
marked as Ext.- ‘6’ and the defence counsel did not turn up to
cross-examine this witness, so, the witness was discharged
without any cross-examination.
28. The prosecution witness Parmanand Singh
(PW-12) is a formal witness. He identified the signature and
contents of the statement recorded under section 164 of Cr.P.C.
being in the writing of the then Judicial Magistrate First Class,
namely, S.N. Ram, who had recorded the statement of the
appellant under section 164 of Cr.P.C. and the same was marked
as Ext. – ‘7’ and the Magistrate was examined as PW- ’13’.
The prosecution witness S.N. Ram (PW-13) deposed in
his examination-in-chief that on 21.04.2007, he was posted as
Judicial Magistrate, First Class and on that day, he recorded the
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statement of one Shankar Sahni (appellant), which is in his
writing and signature. As per this witness, the accused confessed
his guilt in Central Jail, Patna and he had recorded his
confession. In cross-examination, he stated that the accused was
produced before him by the Jail authority for the first time and
he had warned him that if he would confess his guilt then the
same may be used against him and the same may be the basis of
his conviction.
29. At first, we would discuss the evidentiary value of
the appellant’s confessional statement recorded by the Judicial
Magistrate under section 164 of Cr.P.C. It is settled principle of
law that a confession recorded under section 164 of the Cr.P.C.
is generally admissible as an evidence and can be used to
establish the guilt but such confessional statement is not
considered as a substantive piece of evidence on its own. It can
only be used to corroborate or contradict the statements made in
the court and is generally considered only when it has been
recorded after having complied with all the mandatory
provisions of section 164 of Cr.P.C. and in accordance with the
provisions of section 281 of Cr.P.C., thus before placing reliance
upon such confession, it has to be seen whether such confession
has been made voluntarily without any pressure or threat or
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under influence and when both the conditions are fulfilled then
it has to be seen whether such confession is true and
trustworthy, only thereafter, it can be used as corroborative to
other evidences which are against the accused and are indicating
his guilt. In this regard, the principles laid down by the Hon’ble
Apex Court in the case of S. Arul Raja (Supra) are relevant. As
per section 164 (4) of the Cr.P.C, every confessional statement
under section 164 of the Cr.P.C. is to be recorded in the manner
prescribed in section 281 of Cr.P.C., for recording the
examination of an accused person and shall be signed by the
person making the confession and the Magistrate shall make his
memorandum on the foot of such record to the following effect:-
“I have explained to (name) that he is not
bound to make a confession and that, if he does so, any
confession he may make may be used as evidence against
him and I believe that this confession was voluntarily made.
It was taken in my presence and hearing, and was read over
to the person making it and admitted by him to be correct,
and it contains a full and true account of the statement
made by him.”
In the present matter, Ext.-7, which is said to be the
confessional statement of the appellant recorded under section
164 of Cr.P.C., shows that the Magistrate’s memorandum as
required to be mentioned at the foot of the record of confession,
is in a typed format, upon which the concerned Magistrate
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simply made his signature and the same does not show the
application of his judicial mind to the contents of the typed
memorandum.
30. We now come to the manner in which the
purported confession of the appellant was recorded. Though at
the time of recording the confession, the appellant was in
judicial custody and not in police custody and the appellant’s
counsel has not taken the plea that at the time of recording the
confession, the appellant was under any kind of influence,
pressure or threat though while recording his statement under
section 313 of Cr.P.C. he took the plea that he had made
confession in the court due to fear of the uncle of the deceased
but in this regard, no evidence was given by him in defence.
Nonetheless, if we take into account the spirit of sections 164
and 281 of Cr.P.C. then we find that the confession of an
accused should not be recorded in the form of leading questions,
since such questions suggest the answer to the person before
whom the leading question is put and the leading question can
compromise the integrity of the confession and also the
accused’s right to a fair trial. While recording the confession
under section 164 of the Cr.P.C., the Magistrate should allow the
accused to express himself freely without prompting or making
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suggestion. Though such confession can be recorded in the
question and answer form but the leading question must not be
asked. In the instant matter, the learned Magistrate simply put
one question containing the entire charge which is reproduced
Ad Verbatim herein below:-
” प्रशन – आप पर आरोप है कक आप ने 16.04.2007 को 8:00 – 9:00
बजज रात मे मु नना साहनी कपता राजे द्र साहनी उम्र 8 वरर को गं गा ककनारे जाने
वाले दुललापु र कबजली टावर के पास उसके मुं ह मे बालू कोचकर व गरर न दबाकर
मार कदया व वह भाग गए तथा लाश को छुपाया। मु नना साहनी मृ तक पपल राजे द्र
साहनी उम्र 8 वरर कनवासी मोहलला बसतर थाना दीदारगं ज कजला पटना की मै ने
जानबूझकर हतया की जानबूझकर हतया ककया। प्रकतशोध उकत की भावना से
ककया है ।
उतर – जी हां । ”
So, the aforesaid manner in which the appellant’s
confession was recorded, was not proper as the concerned
Magistrate simply put a question giving the details of the
allegations to the appellant and after asking the said question,
the concerned Magistrate became silent which shows that he did
not try to find out the voluntariness of such confession and we
are of the opinion that when a confessional statement of an
accused is to be recorded under section 164 of Cr.P.C., then after
giving the necessary warning as required under section 164(2)
of Cr.P.C, the questions in the following manner may have been
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put :-
(i) सवरपर
् थम अपराकधक घटना का सं ककपत कववरण दे तेहुए ले ककन अकभयु कत के आरोकपत कृतय का उलले ख नहीं करते हुए यह
पूछा जाना चाकहए कक कया आप जानते है कक आप इस अपराध मै
अकभयु कत है ?
(Firstly, while giving a brief details of the alleged crime but
without mentioning the alleged act or role of the accused, it should be
asked, do you know that you are accused of this crime ?)
Note : – यकद उतर सकारातमक कदया जाता है तो अगला यह
प्रशन पूछा जाना चाकहए :
(If the answer is positive then this question should be asked
next:)
(ii) इस अपराध के बारे मे आपको कया जानकारी है ?
(What do you know about this crime?)
(iii) इस मामले से सं बंकधत अपराध ककसके दारा ककया गया है ?
(Who has committed the said crime related to this case?)
Note: – If in the aforesaid questions, the accused gives an
answer in which he accepts or shows the commission of the
alleged offence having been committed by him then the
following question should also be put to him :-
(iv) उपरोकत अपराध कजसे आपने अपने दारा ककया जाना
सवीकार ककया है , यह बताएं कक आपने यह अपराध ककस तरीके से एवं
कब ककया है ?
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(The above mentioned crime which you have admitted to have
been committed by yourself, please state how and when did you commit
this crime?)
If the confessional statement of an accused is recorded in
the aforesaid manner then the same can be deemed to be proper
but in the present matter, the learned Magistrate put only one
question giving the details of the entire allegations, upon which,
the appellant gave only one answer as “जी हां । “, which is not
proper, and therefore, we do not deem it fit and proper to place
reliance upon the appellant’s statement which is said to be of his
confessional statement recorded under section 164 of Cr.P.C.,
upon which the learned trial court has mainly relied while
convicting the appellant, which was not proper.
31. Now, we come to the circumstances which are
material in the present matter. We have to find out whether all
the material circumstances appearing from the prosecution story
were sufficiently proved by the prosecution or not. It is an
admitted position that there is no direct evidence in this matter
and no one has claimed to have seen the commission of the
alleged murder of the deceased by the appellant. On 16.04.2007,
there was a marriage ceremony of the daughter of one Luxmi
Sahani in the village of the informant and on that day in the
night at about 08:00 -09:00 P.M., the informant’s son namely,
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Munna Sahni (victim) aged about 8 years went missing and just
next day in the morning, the victim’s dead body was found near
an electric tower and during the course thereof, one Bittu Kumar
(PW-9) aged about 10 years came there and revealed that the
appellant took him and the victim to the shop of one Ajay Ji but
he managed to flee away while the victim was caught by the
appellant and as per the informant, after revealing the alleged
act of the appellant by Bittu Kumar (PW-9), the appellant was
caught and then the appellant divulged that he had killed the
victim by filling sand in the mouth of the victim and pressing
his neck and the said confession was made by the appellant
before the informant and several co-villagers, of whom, many
were examined before the trial court. If we believe the said
prosecution story then it appears that it was Bittu Kumar (PW-9)
who had lastly seen the victim in the captivity or company of
the appellant. Though PW-9 supported his allegation in the court
while deposing but the learned counsel appearing for the
appellant has argued that his evidence should not be taken into
account as admittedly the statement of PW-9 was not recorded
by the investigating officer under section 161 of Cr.P.C. and the
said fact has been accepted by the learned APP appearing for the
State during the course of argument. In view of this contention,
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we have perused the record and found that though it is correct to
say that the said witness was not examined by I.O. but merely
on the said ground, the testimony of PW-9 can not be discarded
entirely, nonetheless evidently the veracity of the said witness
could not have been tested on account of non-availability of his
statement under section 161 of Cr.P.C. which could have been
used to contradict him by drawing his attention towards his
previous statement during the course of cross-examining him in
light of provision contained in section 145 of the Indian
Evidence Act and in such a situation, the court evidence of this
witness ought to have been examined with great care. In this
regard reference be had to a judgment rendered by the Hon’ble
Apex Court in the case of Ram Lakhan Singh & Ors. vs. State
of Uttar Pradesh, reported in (1977) 3 SCC 268, paragraph No.
37 whereof is reproduced herein below :-
” 37. It is true that no enmity or grudge is
suggested against this witness, but we find that this witness
was not even examined by the police nor was he cited in the
charge-sheet. In a grave change like the present, it will not
be proper to place reliance on a witness who never figured
during the investigation and was not named in the charge-
sheet. The accused who are entitled to know his earlier
version to the police are naturally deprived of an
opportunity of effective cross-examination and it will be
difficult to give any credence to a statement which was
given for the first time in Court after about year of the
Patna High Court CR. APP (DB) No.1072 of 2012 dt.03-07-2025
36/44occurrence. We cannot, therefore, agree that the High Court
was right in accepting the evidence of this witness as
lending assurance to the testimony of other witnesses on the
basis of which alone perhaps the High Court felt unsafe to
convict the accused.”
Yet another aspect of the matter is that although the
defence counsel himself remained fully careless while cross-
examining PW-9 but the trial court itself discharged its judicial
function like a moot spectator and the power conferred under
section 165 of the Indian Evidence Act was not exercised by the
learned trial court. Moreover, PW-9 was only 10 years old boy
at the time of revealing the alleged role of the appellant and in
the whole night of 16.04.2007, he remained mum and went to
sleep and suddenly, on the next day when the dead body of the
victim was found, he appeared and revealed the alleged act of
the appellant. Furthermore, during the trial, PW-9 improved his
version to some extent and he stated that he and the victim were
taken by the appellant to a shop of one person, namely, Ajay Ji
where the appellant purchased biscuit and Gutka and thereafter,
the appellant asked them to go towards Ganga river for walk.
But such story was not revealed by PW-9 initially before the
informant and other witnesses before whom PW-9 had first
revealed the alleged role of the appellant and further the
prosecution did not produce the said shopkeeper, namely, Ajay
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Ji, who was the best person to prove the factum of last seen of
the deceased in the company of the appellant, so, in view of
these facts, the theory of last seen, which is the most important
part of the entire chain of the alleged circumstances, can not be
deemed to have been proved by reliable evidence, thus the
prosecution has not been able to succeed in proving the main
circumstance which is most important to connect the other links
with the entire chain of alleged circumstances. Here, it is
important to mention that before the trial court the defence
counsel remained careless in cross-examining the prosecution
witnesses including the star witness PW-9 as only one or two
questions were asked from the material witnesses and no cross-
examination was done in respect of the material circumstances
which were revealed by the prosecution witnesses in their
examination-in-chief and while convicting the appellant, the
learned trial court deemed the evidence of these prosecution
witnesses as unchallenged and the same was taken into
consideration by the trial court while convicting the appellant
but it is settled position of law that the primary burden of the
prosecution to prove the charged offences beyond reasonable
doubt does not shift from the prosecution except in some
exceptions and the Hon’ble Apex Court has consistently held
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that the burden of proving the guilt of the accused, including in
cases where the accused admits guilt under section 164 of the
Cr.P.C., rests primarily on the prosecution and the prosecution
must prove its case beyond reasonable doubt and an admission
by the accused does not automatically relieve the prosecution of
its burden. So, in this regard, the trial court’s approach was not
proper and all the material evidences ought to have been judged
independently and judiciously without being prejudiced with the
casual approach of defence counsel in cross-examining the
prosecution’s witnesses.
32. Now, we come to the extra judicial confession
of the appellant. It is well settled position of law that the extra
judicial confession is considered to be a weak evidence by itself
and the same has to be examined with greater care and caution.
In this regard, we would like to refer to the principles laid down
by the Hon’ble Apex Court in a judgment passed in the case of
Sahadevan and Another vs. State of Tamil Nadu reported in
(2012) 6 SCC 403, which have also been reiterated by the
Hon’ble Apex Court in a recent judgment passed in the case of
Ramu Appa Mahapatar vs. State of Maharashtra, reported in
(2025) 3 SCC 565. The principles laid down in the case of
Sahadevan & Another (supra) are being reproduced herein under
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:-
“16. …………. by the accused :
(i) The extra-judicial confession is a weak evidence
by itself. It has to be examined by the court with greater
care and caution.
(ii) It should be made voluntarily and should be
truthful.
(iii) It should inspire confidence.
(iv) An extra-judicial confession attains greater
credibility and evidentiary value if it is supported by a
chain of cogent circumstances and is further corroborated
by other prosecution evidence.
(v) For an extra-judicial confession to be the basis
of conviction, it should not suffer from any material
discrepancies and inherent improbabilities.
(vi) Such statement essentially has to be proved like any
other fact and in accordance with law.”
Reference in this regard be also had to the judgments
rendered by the Hon’ble Apex Court in the following cases : –
(i) Judgment rendered in the case of Ratnu Yadav
vs. State of Chhattisgarh, reported in 2024 SCC Online SC
1667;
(ii) Judgment rendered in the case of Pawan
Kumar Chourasia vs. State of Bihar, reported in (2023) 18
SCC 414;
Patna High Court CR. APP (DB) No.1072 of 2012 dt.03-07-2025
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(iii) Judgment rendered in the case of Sanjay vs.
State of Uttar Pradesh, reported in 2025 SCC Online SC 572.
33. In the present matter, the informant has stated in
his fardbeyan that when the dead body of the victim was found,
the appellant’s act of taking the victim in the past night was first
revealed by PW-9 and then the appellant was caught and at that
time, he accepted his guilt before the prosecution witnesses PW-
1, PW-2, PW-3, PW-5, PW-7 and PW-8 and the informant also
revealed the cause or the appellant’s motive due to which he had
killed the victim. No doubt the informant (PW-8) and other
witnesses PW-1, PW-2, PW-3, PW-5 and PW-7 before whom
the appellant made his confession as per prosecution story,
supported the said act of the appellant but all these witnesses did
not reveal the time when the appellant was caught, the place
from where he was caught and admittedly, the appellant was in
the captivity of several co-villagers including the informant
when he is said to have accepted his guilt, which raises a serious
doubt about the appellant’s voluntariness in accepting his guilt,
so, on these aspects, the evidence of these witnesses appears to
be some what vague and not sufficient to prove the appellant’s
voluntariness in accepting his guilt. Moreover, as per PW-2,
PW-3 and PW-5, the appellant also accepted his guilt before the
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police during the course of investigation but the investigating
officer said nothing about this and another important aspect is
that regarding the place where the dead body of the deceased
was seen lying, the evidence of the investigating officer (PW-
10) is contradictory to the evidence of other witnesses. PW-10
deposed that he inspected the place of occurrence which was
situated behind an iron factory from where the informant’s
house was situated at a distance of 500 Gaj on the western side
and the same was situated at a distance of 200 Gaj towards the
western side of the electric tower and the dead body was found
in a 12 feet deep ditch. Thus, the evidence of the investigating
officer does not corroborate the place of recovery as revealed by
the informant and other witnesses as they stated that the dead
body was recovered from behind the electric tower and none of
them said that the dead body was found in a ditch. Further, as
per PW-6, a small rope and one handkerchief were found near
the dead body of the deceased but in this regard, the
investigating officer made some contradictory statement as he
stated in his examination-in-chief that the informant himself
produced these articles but in the cross-examination he stated
that the same were found near the dead body. The prosecution
failed to establish the connection between these seized articles
Patna High Court CR. APP (DB) No.1072 of 2012 dt.03-07-2025
42/44
and the commission of the alleged crime of murder. The
important thing is that the alleged occurrence took place in the
night of 16.04.2007 and the investigation was started on
17.04.2007 after recording the fardbeyan of the informant,
whereafter the chargesheet was filed against the appellant on
18.04.2007 which shows that the entire investigation was
completed within 24 hours of its initiation, which further
indicates that the investigating officer worked in a very hasty
manner without giving reason of such hastiness.
Conclusion : –
34. After having gone through the entire evidences
of the prosecution and also taking into account the facts and
circumstances having emerged from the prosecution’s evidences
as discussed above, we are of the view that in this matter, the
prosecution failed to prove the factum of the deceased having
been last seen in the company of the appellant by reliable and
credible evidence, so, the main link to connect other
circumstances can be deemed to have not been established by
the prosecution by adducing cogent and reliable evidence. So far
as the extra judicial confession, which is said to have been made
by the appellant before the informant and PW-1, PW-2, PW-3,
PW-5 and PW-7 is concerned, the same does not inspire
Patna High Court CR. APP (DB) No.1072 of 2012 dt.03-07-2025
43/44confidence in the mind of this Court for the reasons discussed
herein above and as far as the appellant’s confessional
statement, which is said to have been recorded under section
164 of Cr.P.C. is concerned, the same also does not appear to
have been recorded in a proper manner as we have discussed in
paragraph No. ’30’ and further, it is a settled position of law that
the extra judicial confession is considered to be a weak evidence
by itself and the confessional statement made under section 164
of the Cr.P.C. can only corroborate or contradict other evidences
and the same cannot be considered as substantive piece of
evidence on its own strength, although the same can be used to
establish the guilt of an accused but only when it has been
recorded in a proper manner after complying with all the
mandatory conditions mentioned in sections 164 and 281 of the
Cr.P.C. and the same appears to have been made voluntarily and
also seems reliable in view of other supportive evidences which
are lacking in the present matter. As such, we are not persuaded
to affirm the judgment impugned convicting the appellant for
the charged offences, hence the judgment of conviction and
order of sentence dated 18.08.2012 and 24.08.2012,
respectively, passed by the learned court of 2nd Additional
District & Sessions Judge, Patna City in Sessions Trial Case No.
Patna High Court CR. APP (DB) No.1072 of 2012 dt.03-07-2025
44/4448 of 2007, are hereby set aside and consequently the present
appeal succeeds, hence is allowed.
35. The appellant is in judicial custody and he has
served about eighteen years in jail, hence, he is directed to be
released forthwith, if his custody is not required in any other
case.
36. Let the judgment’s copy be sent to the trial
court along with the LCR forthwith for needful information and
compliance.
(Shailendra Singh, J)
I agree.
(Mohit Kumar Shah, J) (Mohit Kumar Shah, J) annu/- AFR/NAFR AFR CAV DATE 08.05.2025 Uploading Date 03.07.2025 Transmission Date 03.07.2025