Patna High Court
The State Of Bihar vs Satya Narain Ram on 14 July, 2025
Author: Sunil Dutta Mishra
Bench: Sunil Dutta Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
GOVT. APPEAL (DB) No.11 of 2000
======================================================
The State of Bihar
... ... Appellant/s
Versus
1. Satya Narain Ram S/o Bali Ram R/o vill - Kujhi, P.S.- Nokha (Baghaila),
Distt.- Rohtas
2. Bijay Ram S/o Harbansh Ram R/o vill - Kujhi, P.S.- Nokha (Baghaila),
Distt.- Rohtas
3. Surajdeo Ram S/o Sangri Ram R/o vill - Kujhi, P.S.- Nokha (Baghaila),
Distt.- Rohtas
4. Dukhi Chamar S/o Garju Chamar R/o vill - Kujhi, P.S.- Nokha (Baghaila),
Distt.- Rohtas
5. Gopal Chamar S/o Bidhi Chamar R/o vill - Kujhi, P.S.- Nokha (Baghaila),
Distt.- Rohtas
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Dilip Kumar Sinha, APP
For the Respondent/s : None.
======================================================
CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA)
Date: 14-07-2025
Heard Mr. Dilip Kumar Sinha, learned A.P.P. appearing
for the Appellant/State.
2. The present Government Appeal has been filed under
Section 378(1) and (3) of the Code of Criminal Procedure, 1973
(hereinafter referred to as 'Cr.P.C.') challenging the judgment of
acquittal dated 08.09.2000 passed by learned 6 th Additional
Sessions Judge, Rohtas at Sasaram (hereinafter referred to as
'Trial Court') in Sessions Trial No.48 of 1988 arising out of
Nokha (Baghaila) P.S. Case No.98 of 1987 corresponding to
Patna High Court G. APP. (DB) No.11 of 2000 dt.14-07-2025
2/27
G.R. No.1295 of 1987, committed by learned C.J.M., Sasaram
to the Court of Sessions on 21.01.1988.
3. The brief facts leading to the present appeal are as
under:-
The case of the prosecution is that at about 10:00 P.M. on
25.05.1987
the informant Prahlad Paswan (PW-7) gave his
fardbeyan at Nokha Police Station recorded by Bachcha Singh
(PW-15), Officer-in-Charge, Nokha P.S. that on 25.05.1987 at
about 7:00 P.M. the women of the informant party had gone to
attend the call of nature towards western side of village. At that
time Gopal Chamar (A-5) flashed his torch upon the said
women with bad intention and the said fact was informed by the
deceased Chander Dusadh and wife of Bigan. The nephew of
the informant, namely, Chander Dusadh upon getting the said
information went to enquire from Gopal Chamar (A-5) and
upon this, there was altercation between them, however, the
informant and others intervened and both were separated. It is
further stated that in the meantime Dukhi Chamar (A-4) with
small pistol, Surajdeo Master (A-3) with lathi, Gopal Chamar
(A-5) with a three-cell torch, Satya Narain Chamar (A-1) with a
gun, Bijay Chamar (A-2) with a small pistol came there and
upon instigation of Surajdeo Master (A-3), Dukhi Chamar (A-4)
Patna High Court G. APP. (DB) No.11 of 2000 dt.14-07-2025
3/27
fired from pistol upon Chander Dusadh which hit him and he
fell down. Bijay Chamar (A-2) and Satya Narain Chamar (A-1)
fired upon the informant three to four times but the informant
hide himself in the corner of wall and saved himself. Gopal
Chamar flashed his torch and in that light the informant saw all
the accused persons and identified them. On hearing the sound
of firing, several women and male persons came there, then the
accused persons ran away to their houses. The injured Chander
Dusadh was brought to Nokha Hospital on a cot in unconscious
state but he died on the way.
4. On the basis of fardbeyan, the police instituted Nokha
P.S. Case No.98 of 1987 under Sections 302, 307/34 of I.P.C.
and 27 of the Arms Act. The investigating agency carried out the
investigation. During course of investigation, the Investigating
Officer recorded the statement of witnesses under Section 161
Cr.P.C. and collected the relevant documents and after
completion of the investigation, charge sheet was filed against
all the accused persons/respondents under the aforesaid sections
and since the case was exclusively triable by the Court of
Sessions, it was committed to the Court of Sessions. The
charges were framed against the respondents/accused persons.
5. The accused persons completely denied the charges
Patna High Court G. APP. (DB) No.11 of 2000 dt.14-07-2025
4/27
levelled against them. In order to substantiate the charges
levelled against the accused persons, the prosecution examined
altogether 15 witnesses.
6. PW-1 is Ram Subhag Ram (son of Faudar Dusadh),
PW-2 is Chhotelal Singh, PW-3 is Ram Brichh Dusadh, PW-4 is
Kameshwar Ram, PW-5 is Rup Chandra Ram (son of Ram
Subhag Ram), PW- 6 is Daulatia Devi, PW-7 is Prahlad Dusadh
(informant), PW-8 is Janki Devi (wife of Deputy Dusadh), PW-
9 is Simrikha Devi (wife of Majester Dusadh), PW-10 is
Nathuni Ram (son of Bigan Ram), PW-11 is Nanku Ram, PW-
12 is Munia Devi (wife of Prahlad Dusadh/informant), PW-13 is
Dr. Naresh Prasad Rai, who performed post-mortem
examination on the dead body of deceased Chander Dusadh.
PW-14 is Dr. Rajesh Kumar Singh who examined Daulatia Devi
(PW-6) and PW-15 is Bachcha Singh (then officer-in-charge,
Nokha P.S.).
7. On behalf of prosecution altogether six documents
were exhibited.
Ext.1 is signature of Bachcha Singh (then officer-in-
charge, Nokha P.S.) on F.I.R.;
Ext.2 is Inquest Report (carbon copy);
Ext.2/1 is signature on the seizure list;
Ext.2/2 is signature of Rup Chandra on the seizure list;
Ext.3 Post-mortem Report of deceased Chander Dusadh;
Ext.4 is carbon copy of Injury Report of Daulatia Devi;
Ext.5 is F.I.R.; and
Patna High Court G. APP. (DB) No.11 of 2000 dt.14-07-2025
5/27
Ext.6 is Inquest Report of deceased Chander Ram.
8. The accused persons were examined under Section 313
of the Cr.P.C. wherein they denied all allegations and charges
and pleaded innocence.
9. The learned Trial Court on considering the evidence on
record held that:
(i) The witnesses examined in this case are highly
interested witnesses and are relative to each other. The
independent witnesses present at the place of
occurrence, such as Ram Bilash Dusadh as well as
persons available in the locality, have not been
examined in this case.
(ii) The identification of accused persons in the torch
light of the accused as mentioned in the F.I.R. as well
as in the evidence of the witnesses is doubtful.
(iii) There is a contradiction in the medical evidence as
well as ocular evidence.
(iv) Non-examination of I.O. without any reason, the
defence has been highly prejudiced.
(v) There is improvement in the prosecution case that
Daulatia Devi was injured in the occurrence and the
same is doubtful.
(vi) The prosecution failed to prove the genesis of the
occurrence that Gopal Chamar had flashed torch upon
the ladies of the informant party with bad intention as
the prosecution did not examine and withheld two
material witnesses, namely i.e. wife of Chander and
wife of Bigan.
10. The learned Trial Court on the basis of aforesaid
findings came to the conclusion that prosecution has failed to
Patna High Court G. APP. (DB) No.11 of 2000 dt.14-07-2025
6/27
prove the charges levelled against the accused persons beyond
shadow of all reasonable doubts. Hence, benefit of doubt was
given to the accused persons and they were acquitted of the
charges levelled against them.
11. Being aggrieved by the said judgment of acquittal, the
State of Bihar preferred the present appeal.
12. Sh. Dilip Kumar Sinha, learned A.P.P. for the State
submitted that in the present case, the prosecution has proved
charges against the respondents/accused persons, despite which,
the learned Trial Court has passed the impugned judgment,
whereby the respondents/accused persons have been acquitted.
It is further submitted that the learned Trial Court has not
appreciated the case of prosecution in its proper perspective and
has arrived at incorrect conclusion that the prosecution has not
been able to bring home charges levelled against the accused
persons on the basis of materials on record. He further
submitted that the prosecution examined altogether 15 witnesses
and when the eye-witnesses supported the case of prosecution,
the learned Trial Court ought to have convicted the
respondents/accused persons. It is submitted that Daulatia Devi
(PW-6) was injured in the occurrence and is a reliable witness.
The reasons given by the learned Trial Court for discarding their
Patna High Court G. APP. (DB) No.11 of 2000 dt.14-07-2025
7/27
evidence are not correct. It is further submitted that some minor
discrepancies are bound to occur in the evidence of witnesses
examined by the prosecution, therefore, the impugned judgment
of acquittal may be set aside and the respondents/accused
persons may be convicted and sentenced accordingly. He further
stated that in appeal under section 378 of Cr.P.C., the High
Court has full power to reappreciate, review and reconsider the
evidence at large, the material on which the order of acquittal is
found and to reach its own conclusion on such evidence. Both
questions of fact and law are open for determination by the High
Court in an appeal against an order of acquittal.
13. We have considered the submissions canvassed by the
learned A.P.P. for the State and perused the materials on record.
It is well settled that this Court has power to reappreciate and
reconsider the evidence in an appeal.
14. The prosecution has examined altogether 15
witnesses. At this stage, we would appreciate the relevant
evidence given by the witnesses.
14.1. PW-1, namely, Ram Subhag Ram, in his
examination-in-chief deposed that at about 7:30 P.M. on the day
of occurrence, the women of his gotia had gone to attend call of
nature, Munia Devi (wife of Prahlad Dusadh/informant) told
Patna High Court G. APP. (DB) No.11 of 2000 dt.14-07-2025
8/27
him that Gopal Chamar had flashed torch upon the women.
Chander Dusadh went to Gopal Chamar and protested upon
which there was altercation between them and this witness and
others intervened and separated them, then he returned back to
his baithka. He further deposed that he heard the sound of firing
from the eastern side on which he went there and saw that
Dukhi Chamar had a small pistol, Satya Narain had a gun, Bijay
had a small pistol, Surajdeo had a lathi and Gopal had a three-
cell torch in his hand. Surajdeo Chamar instigated other accused
persons to kill, then Dukhi Chamar fired upon Chander Dusadh
by which he fell down. Gopal Chamar was flashing torch and in
that light he identified all the accused persons. Satya Narain also
fired which hit Daulatia Devi (PW-6). Due to firing, there was
sign of chharra (pellet) upon the wall of Kameshwar Dusadh.
After returning back of the accused persons, he went to Chander
Dusadh, who was taken to Nokha Hospital on a cot but he died
on the way, then he went to Nokha Police Station with dead
body. He further stated that besides him, Ram Brichh Dusadh
(PW-3), Kameshwar Dusadh (PW-4), Rambilash Dusadh (not
examined), Prahlad Dusadh (PW-7), Rup Chandra Dusadh (not
examined), Janki Devi (PW-8), Simrikha Devi (PW-9) and
Daulatia Devi (PW-6) had seen the occurrence.
Patna High Court G. APP. (DB) No.11 of 2000 dt.14-07-2025
9/27
14.2. In his cross-examination, PW-1 stated that when he
heard the sound of firing then he went towards that side. When
he reached the corner of house of Kameshwar then from that
place he saw Chander was hit by firing. In para 16 he said that
he had gone to the police station but he did not give statement to
the police on that night that the murder had taken place in his
presence. He further stated that he met with the police 4 days
after the occurrence. He has admitted in para 17 that prior to this
occurrence, he had gone to jail in a case instituted by Surendra
Ram, son of Sohrai Ram, gotia of Dukhi Ram.
15. PW-2, Chhotelal Singh, is a formal witness who has
proved the signature of officer-in-charge of Nokha P.S.
16. PW-3, namely, Ram Brichh Dusadh in his
examination-in-chief stated that on the date of occurrence he
was sitting with Subhag, Prahlad and Ram Chandra in the
baithka of Subhag where wife of Prahlad came and told that
Gopal had flashed torch upon her mouth on which Ram Chandra
Dusadh went to Gopal and asked about the same. The
altercation took place. He, Subhag (PW-1) and Prahlad (PW-7)
went there and pacified them. Then they returned back to
baithka of Subhag and Chander remained there. Thereafter, they
heard firing from northern side. Then they went to darwaja of
Patna High Court G. APP. (DB) No.11 of 2000 dt.14-07-2025
10/27
Ram Bilas where Gopal was with a torch. On instigation of
Surajdeo Master, Dukhi Chamar fired upon Chander which hit
him on right arm and chest. Satya Narain also fired from his gun
which hit on the wall of Kameshwar and Daulatia got injured.
PW-3 in his cross-examination deposed that at the time of
occurrence when he heard the sound of firing, then only one
woman was present who came running to him. He further
deposed that he had seen only his wife who was coming and had
not seen any other. He further deposed that first of all three
persons i.e., he, Subhag (PW-1) and Prahlad (PW-7) came out
together from baithka after hearing the sound of firing.
17. PW-4, namely, Kameshwar Ram, in his examination-
in-chief has narrated the incident in the same terms as PW-1. In
his cross-examination, PW-4 has stated in para 10 that when he
was sitting on the sahan land he heard one sound of firing.
There was darkness and he hide himself by the wall of Bilash,
Chander had sustained one bullet which hit him on his arm and
panjara. He further stated that he had gone with dead body at
police station and alongwith him Bilash, Prahlad, Subhag and
Ram Brichh were there and in that night only his statement was
taken, not others. He has not remembered whether Daroga Jee
had read over the statement to him or not or whether his thumb-
Patna High Court G. APP. (DB) No.11 of 2000 dt.14-07-2025
11/27
impression or signature was taken or not. The contradiction with
his previous statement before police was put to him.
18. PW-5, namely, Rup Chandra Ram, who is son of PW-
1 also in his examination-in-chief has narrated the incident in
the same terms as PW-1. In his cross-examination, he has stated
that after the occurrence, Ram Subhag Dusadh, Prahlad Ram,
Ram Brichh, Deputy and Shiv Shankar came there.
19. PW-6, namely, Daulatia Devi in her cross-
examination admitted that she is own sister of PW-1 and all
prosecution witnesses are gotia and relative of informant
Prahlad. She deposed that on hearing four to five firings, first of
all she came out from her house and she was hit by firing and
she was taken inside by her family members where she
remained about one and a half hours. There was night and
darkness. She had not stated anything to anyone. No one had
told her about the incident in the night and she came to know
about the occurrence on coming of Daroga Jee in village. She
further admitted that she had no talk with Daroga Jee.
20. PW-7 who is Prahlad Dusadh (informant), has
deposed in his examination-in-chief that at about 7:00 PM on
the date of occurrence he was sitting at baithka of Subhag with
Kameshwar, Subhag, Bilas and Ram Brichh. His wife and
Patna High Court G. APP. (DB) No.11 of 2000 dt.14-07-2025
12/27
daughter-in-law went to attend call of nature towards western
side of the village. His wife came there and stated that Gopal
Chamar with bad intention flashed torch light on her face.
Chander was present there, and he went to ask Gopal where
altercation between them started then they intervened and told
them to return to their home and they came to their baithka. On
the sound of firing, he, Subhag (PW-1), Ram Brichh (PW-3),
Bilash and Kameshwar (PW-4) went there and between the wall
of Kameshwar and Bilash, they saw that Dukhi Chamar and
Satya Narain had desi-pistol, Surajdeo Master had a lathi, Bijay
had taken desi-gun. Master told them what they are seeing,
Gopal was flashing torch light, Dukhi fired from his desi-gun
which hit on right panjra and arm. Satya Narain and Bijay also
fired which hit in the leg of Daulatia and wall of Kameshwar.
The accused persons fled away in the East. Thereafter, he went
near Chander who was drenched with blood and was taken to
Nokha Hospital by him along with Subhag, Kameshwar (PW-4),
Ram Brichh (PW-3), Bilash, Nathuni Ram. Chander died on the
way. The dead body was brought to Nokha P.S. where he had
given his statement which was read over to him by Daroja Jee
and he put his thumb impression on the same. The witnesses to
the occurrence are Kameshwar, Bilash, Daulatia, Ram Brichh
Patna High Court G. APP. (DB) No.11 of 2000 dt.14-07-2025
13/27
and wife of Deputy and Majester who have seen the occurrence.
He had seen the accused persons in the torch light of accused
Gopal. In his cross-examination, he has stated that on hearing
sound of firing all the persons sitting at baithka ran towards the
firing. They also heard the firing three to four times. In para 22
of his cross-examination, he has stated that he told Daroga Jee
that Satya Narain and Bijay had made firing which hit on the leg
of Daultia Devi and wall of Kameshwar. He also stated in the
fardbeyan that occurrence was seen by Daulatia (PW-6), Ram
Brichh (PW-3), Subhag (PW-1), Kameshwar (PW-4), wife of
Deputy (PW-8 Janki Devi) and wife of Majester (PW-9
Simrikha Devi).
21. PW-8 is Janki Devi, wife of Deputy Dusadh and PW-9
is Simrikha Devi, wife of Majester Dusadh (daughter-in-law of
Prahlad). Both witnesses have been tendered by the prosecution
for cross-examination by the defence. PW-8 in her cross-
examination, deposed that she was at her house on the date of
occurrence. She further deposed that she did not visit the house
of Chander on the date of occurrence and she only met her
husband Deputy Dusadh.
22. PW-9 Simrikha Devi in her cross-examination
deposed that after occurrence she met Prahlad and on her saying
Patna High Court G. APP. (DB) No.11 of 2000 dt.14-07-2025
14/27
Prahlad and Subhag were called by the villagers. She also stated
that she told Prahlad about the incident and after discussion,
they went to police station.
23. PW-10 is Nathuni Ram who is a witness on Inquest
Report.
24. PW-11 Nanku Ram is a witness of the seizure list.
25. PW-12 Munia Devi, wife of Prahlad Dusadh (PW-7)
is a hearsay witness with respect to the occurrence.
26. PW-13 is Dr. Naresh Prasad who had conducted post-
mortem on the dead body of Chander Ram. He found the
following ante-mortem injuries on the person of the deceased:-
(1)….
(i) wound of entry 1”x1” above right elbow, lacerated
with inverted margins with surrounding skin blackened
deep into the muscle of right upper arm at lower part in
outer side.
(ii) wound of exit 1½”x 1½” at inner side of right
upper arm with lacerated and averted margin.
(iii) wound of entry 1½”x 1½” at right border of chest
in lower part corresponding to the injury no.(ii) with
lacerated and inverted margins deep into the lower part
of chest cavity.
(2) On dissection the right chest cavity and abdomen
was found filled with blood and blood clot, about 1
litre in each compartment . Right lung was found with
lacerated injuries and was collapsed. There was
lacerated injury of liver and diaphragm. Bullet was
found impacted in diaphragm and was preserved.
(3) Injury was ante-mortem, grievous and was caused
Patna High Court G. APP. (DB) No.11 of 2000 dt.14-07-2025
15/27by firearms, may be caused by country-made pistol.
(4) The death was caused due to shock and
haemorrhage resulting from above injuries which were
sufficient to cause death in normal course of nature.
(5) Time elapsed since death 6 to 24 hours.
(6) Nothing was found in the stomach of the dead
body.
(7) The post-mortem report is in his handwriting and it
bears his signature which he identified, marked at
Ext.3.
(8) In cross-examination, he deposed that the shots
were fired from very close range as regard injury no.1
is concerned. Injury no.3 was probably from some
distance. Injury no.1 and 3 were probably by different
two shots. It may be by one person but it was
definitely by two different shots.
(9) The preserved bullet was sent by him to the office.
He had found one bullet. He cannot say the shape and
size of the bullet found by him as it has not been
mentioned. The death was not before 6 hours and not
after 24 from the time of examination. He has not
given the dimension of the wound.
27. PW-14 is Dr. Rajesh Kumar Singh who had examined
Daulatia Devi and found following injuries on her person:-
(i) Small abrasion 1/20” x ½ ” on the back of upper
part of leg below knee joint. The nature of injury is
simple caused by a pellet of the firearm.
28. In his cross-examination, he deposed that he did not
find any pellet. He has admitted that this sort of injury can also
be caused by fall. He further deposed that he has not mentioned
in his injury report (Ext.4) that the above injury can be caused
Patna High Court G. APP. (DB) No.11 of 2000 dt.14-07-2025
16/27
by firearm.
29. PW-15 is Bachcha Singh, who proved the F.I.R.
(Ext.5) and Inquest Report (Ext.6).
30. We have re-appreciated the entire evidence on record
led by the prosecution. At the outset, it is pertinent to note that
in the F.I.R., it is stated that Dukhi Chamar fired one shot upon
the deceased Chander Dusadh. PW-1 and PW-3 have stated that
Dukhi Chamar assaulted with his pistol by which the deceased
fell down. Satya Narain had also fired but it hit the wall of
Kameshwar. Similar is the statement of other witnesses and all
of them have said that deceased got only one firing.
31. PW-13 Dr. Naresh Prasad Rai who had performed the
post-mortem on the dead body of Chander Ram found three
ante-mortem injuries on the person of deceased. Injury no.(i) is
the wound of entry above right elbow, Injury no.(ii) is wound of
exit over inner side of right upper arm. Injury no.(iii) is wound
of entry at right border of chest in lower part. In his cross-
examination, he has stated that the shots were fired from very
close range as regard injury no.(i) is concerned and injury no.
(iii) was from some distance. Injury nos.(i) and (iii) were by two
different shots. The case of prosecution in the F.I.R. as well as in
the evidence of witnesses is that only Dukhi Chamar fired upon
Patna High Court G. APP. (DB) No.11 of 2000 dt.14-07-2025
17/27
the deceased which hit whereas the medical evidence shows that
the deceased had received two shots of bullets. There is a great
contradiction in medical evidence and ocular evidence making
the prosecution case doubtful.
32. It is pertinent to note that fardbeyan of the informant
(PW-7) in which he projected himself as eye-witness to the
occurrence in question. In his fardbeyan he has narrated the
manner in which the incident took place. As per his fardbeyan,
his specific case is that after hearing the sound of firing, many
villagers came at the place of occurrence then the accused
persons fled away. If the deposition of informant (PW-7),
Prahlad, which we have discussed hereinabove, is carefully
examined, it reveals that PW-7 also projected Kameshwar,
Bilas, Daulatia, Ram Brichh, wife of Deputy and wife of
Majester as eye-witnesses of the occurrence.
33. PW-6 Daulatia Devi has been projected as injured
eye-witness. However, in her cross-examination, she has
deposed that on the sound of four to five firings, first of all she
came out from her house and she was hit by firing. She further
stated that she had come to know about the incident on coming
of Daroga Jee in village. From her deposition, it is clear that she
had no knowledge about the incident and was not an eye-
Patna High Court G. APP. (DB) No.11 of 2000 dt.14-07-2025
18/27
witness or injured witness as projected.
34. It is also relevant to note that there is no mention in
the F.I.R. that on the firing by the accused persons Daulatia
Devi was injured. The witnesses said that by the firing of other
accused persons, Daulatia also got pellet injury. This is an
improvement in the prosecution case. At this stage, we would
like to discuss the deposition of PW-14, Dr. Rajesh Kumar
Singh, who has admitted that in the injury report (Ext.4) of
Daulatia Devi he had not mentioned that the injury (small
abrasion) can be caused by fire arm.
35. PWs-1, 3, 4 & 7 narrated in detail the manner in
which the incident took place and projected themselves as eye-
witnesses. In their cross-examination, PW-1, PW-3, PW-4 and
PW-7 categorically admitted that after hearing the firing they
went towards the place of occurrence. PW-5 in his cross-
examination also admitted that after the occurrence PW-1, PW-
3, PW-7, Deputy and Shiv Shankar came there. The evidence of
the alleged eye-witnesses raises serious doubts on the point of
their presence at the time of actual occurrence of firing on the
deceased. It can be said that they are not the eye-witnesses of
the occurrence. The prosecution witnesses, through their own
deposition, have rendered themselves unworthy of complete
Patna High Court G. APP. (DB) No.11 of 2000 dt.14-07-2025
19/27
reliance. The deposition given by them cannot be accepted.
36. At this stage, we would like to observe that the
prosecution witnesses developed the case in evidence as made
out in F.I.R. and there are so many contradictions in the
statement before the police under Section 161 of Cr.P.C. and the
statement before the Court and those contradictions have been
taken by the defence in their cross-examination. The defence
could not get the opportunity to substantiate those contradictions
by examining the I.O. At this point, it is pertinent to determine
whether in the present case, non-examination of the I.O. is fatal
to the prosecution case and on that account, the impugned
judgment is required to be set-aside.
37. The Co-ordinate Bench of this Court in the case of
Subodh Yadav & Ors. v. State of Bihar reported in 2024 (3)
BLJ 653, considering various judgments of the Hon’ble
Supreme Court, has observed in para 50 to 58 as under:
“50. It is well settled that statement given
to police during investigation under Section 161
Cr.P.C. cannot be read as an ‘evidence’. It has a
limited applicability in a court of law as prescribed
under Section 162 Cr.P.C. It is ‘previous statement’
under Section 145 of the Evidence Act and,
therefore, can be used to cross-examine a witness
for limited purpose to ‘contradict’ such a witness.
The contradiction in two statements would not
always result in totally discredit the witness.
Section 145 read with Section 155 of the Evidence
Act, have to be applied carefully in a given case. In
Patna High Court G. APP. (DB) No.11 of 2000 dt.14-07-2025
20/27Rammi vs. State of M.P. (1999) 8 SCC 649, the
Hon’ble Supreme Court had held as under:-
“24. When an eye-witness is examined
at length it is quiet possible to him to
make some discrepancies. No true
witness can possibly escape from
making some discrepant details.
Perhaps an untrue witness who is well
tutored can successfully make his
testimony totally non-discrepant. But
Court should bear in mind that it is
only when discrepancies in the
evidence of a witness are so
incompatible with the credibility of his
version that the Court is justified in
jettisoning his evidence. But too a
serious view to be adopted on mere
variations falling in the narration of
an incident (either as between the
evidence of two witnesses or as
between two statements of the same
witness) is an unrealistic approach for
judicial scrutiny.
51. If any of the prosecution witnesses
give any evidence contrary to their previous
statement recorded under Section 161 Cr.P.C. or if
there is any omission of certain material
particulars, the previous statement of these
witnesses could be proved only by examining the
I.O. who must have recorded the statement of these
witnesses under Section 161 Cr.P.C. A Court has to
see whether the evidence of I.O. is essential for the
case of prosecution to succeed or not. It is
contended and pointed out that there is material
contradiction in the statements of the prosecution
witnesses before the Court and recorded by the I.O.
and as such, the valuable right of the accused has
been prejudiced.
52. In Tahsildar Singh vs. State of U.P.
AIR 1959 SC 1012, it was held that to contradict a
witness would mean to ‘discredit’ a witness.
Therefore, unless and until the former statement of
the witness is capable of ‘discrediting’ a witness, it
Patna High Court G. APP. (DB) No.11 of 2000 dt.14-07-2025
21/27would have little relevance. A mere variation in the
two statements would not be enough to discredit a
witness. The purpose of the cross-examination of a
witness in terms of Section 145 and 155 of the
Evidence Act is to bring contradictions in the two
statements of the witness.
53. In Ambika Prasad vs. State (Delhi
Admn) (2000) 2 SCC 646 the Hon’ble Supreme
Court held that the criminal trial is meant for
doing justice and not just to the accused but also to
the victim and the society so that law and order is
maintained. It was held that a Judge does not
preside over the criminal trial merely to see that no
innocent man is punished. It was held that a Judge
presides over criminal trial also to see that a guilty
man does not escape. It was held that both are
public duties which the Judge has to perform. It
was held that it was unfortunate that the I.O. had
not stepped into the witness box without any
justifiable ground. It was held that non-
examination of I.O. could not be a ground for
disbelieving eye witnesses.
54. In the case of Bahadur Naik vs. State
of Bihar (2000) 9 SCC 153 it was held by the
Hon’ble Supreme Court that non-examination of
I.O. was of no consequence when it could not be
shown as to what prejudice had been caused to the
appellant by such non-examination.
55. In a criminal case, the evidence of the
I.O. has its own importance, but non-examination
of the I.O. is not fatal in all the cases. It is well
settled that mere non-examination of I.O. does not
in every case cause prejudice to the accused or
affects the credibility of the prosecution version.
56. The Hon’ble Supreme Court in Ram
Dev vs. State of U.P. [1995 Supp (1) SCC 547]
observed that non-examination of I.O. does not in
any way create any dent in the prosecution case,
much less affect the credibility of otherwise
trustworthy testimonies of the eye witnesses. It was,
however, indicated that it is always desirable for
the prosecution to examine the I.O.
57. In Behari Prasad vs. State of Bihar
Patna High Court G. APP. (DB) No.11 of 2000 dt.14-07-2025
22/27
(1996) 2 SCC 317 it was held that a case of
prejudice likely to suffer mostly depends upon facts
of each case and no universal straitjacket formula
should be laid down that non-examination of I.O.
per se vitiate the criminal trial.
58. Admittedly, the I.O. has not been
examined in this case. As stated above, it is well
settled that non-examination of I.O. ipso facto does
not discredit the prosecution version. The right of
bringing on record the contradictions in the
statement of witnesses made before the I.O. is a
very valuable right of the accused and by showing
that, the witness has made improvements or has
given evidence, which contradicts his earlier
statement, the accused is able to satisfy the Court
that the witness is not a reliable witness. It is a
valuable right of the accused.”
38. In our view, in the facts and circumstances of the case,
I.O. is a material witness and non-examination of I.O. has
definitely prejudiced the respondents since they lost opportunity
to cross-examine the I.O. and to substantiate the contradictions
in the evidence of PWs with respect to their earlier statement
before police under Section 161 of Cr.P.C. and the statement
before the Court. In view thereof, the defence has been highly
prejudiced by the non-examination of the I.O. since no reason
has been assigned for his non-examination by the prosecution.
This is a great laches on the part of the prosecution.
39. It is pertinent to note that PW-8 and PW-9 have been
tendered by the prosecution for cross-examination by defence
without their examination-in-chief by the prosecution. The
procedure of tendering witness has been deprecated by the
Patna High Court G. APP. (DB) No.11 of 2000 dt.14-07-2025
23/27
Hon’ble Supreme Court in Sukhwant Singh v. State of Punjab
reported in (1995) 3 SCC 367 wherein it was held that after
amendment in Cr.P.C., tendering of witness for cross-
examination is not permissible. Under the old Code such
tendering of witnesses was permissible, while committing
Magistrate used to record the statement of witnesses, which
could be treated at the discretion of the Trial Court as substantial
evidence. The Hon’ble Supreme Court further held that Section
138 of the Evidence Act envisages that a witness would first be
examined-in-chief and then subjected to cross-examination and
for seeking any clarification, the witness may be re-examined by
the prosecution. There is no meaning in tendering a witness for
cross-examination only. Tendering of a witness for cross-
examination, as a matter of fact, amounts to giving up of the
witness by the prosecution as it does not choose to examine him
in chief.
40. In consonance with Sukhwant Singh (supra),
according to prosecution case itself, PW-8 and PW-9 were eye-
witnesses of the occurrence and their evidence was of a material
nature which was necessary for unfolding of the prosecution
story. The effect of their being tendered only for cross-
examination amounts to the failure of the prosecution to
Patna High Court G. APP. (DB) No.11 of 2000 dt.14-07-2025
24/27
examine them at the trial. Their non-examination-in-chief, in
our opinion, seriously affects the credibility of the prosecution
case and detracts materially from its credibility.
41. Looking the entire evidence led by prosecution and
considering the facts and circumstances of the case, as discussed
above, we are of the view that the prosecution has failed to
prove the case against the accused persons beyond reasonable
doubt.
42. It is well established position of law that if the Trial
Court has taken a view which is a possible view in a reasonable
manner, then the same shall not be interfered. Only in
exceptional cases where there are compelling circumstances and
the judgment in appeal is found to be totally perverse or wholly
unsustainable, the appellate Court can interfere with the order of
acquittal. Presumption of innocence in favour of the accused
further gets reinforced and strengthened by the acquittal of the
Trial Court. The appellate Court cannot overturn acquittal only
on the ground that after reappreciating evidence, it is of the view
that the guilt of the accused was established beyond reasonable
doubt. Only by recording such a conclusion, an order of acquittal
cannot be reversed unless the appellate Court also concludes that
it was the only possible conclusion.
43. Recently, the Hon’ble Supreme Court in H.D.
Patna High Court G. APP. (DB) No.11 of 2000 dt.14-07-2025
25/27
Sundara and Others vs. State of Karnataka, reported in
(2023) 9 SCC 581 has summarised the principles, which govern
the exercise of appellate jurisdiction while dealing with an appeal
against acquittal under Section 378 Cr.P.C. in paragraph 8 as
under:
“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.”
44. The Hon’ble Supreme Court in Nikhil Chandra
Mondal vs. State of West Bengal, reported in (2023) 6 SCC 605
has observed in paragraph 22 as under:
“22. Recently, a three-Judges Bench of this
Court in the case of Rajesh Prasad v. State of
Bihar has considered various earlier judgments
on the scope of interference in a case of
acquittal. It held that there is double
presumption in favour of the accused. Firstly,
Patna High Court G. APP. (DB) No.11 of 2000 dt.14-07-2025
26/27the presumption of innocence that is available to
him under the fundamental principle of criminal
jurisprudence that every person shall be
presumed to be innocent unless he is proved
guilty by a competent court of law. Secondly, the
accused having secured his acquittal, the
presumption of his innocence is further
reinforced, reaffirmed and strengthened by the
court. It has been further held that if two
reasonable conclusions are possible on the basis
of the evidence on record, the Appellate Court
should not disturb the finding of acquittal
recorded by the trial court.”
45. We have re-appreciated the entire evidence on record
before the learned Trial Court, we have also gone through the
reasoning recorded by the learned Trial Court while passing the
impugned judgment and order and we are of the view that the
learned Trial Court has not committed any error while passing
the same. The view taken by the learned Trial Court could not
be said to be either perverse, illegal or impossible to warrant
interference. The view taken by the learned Trial Court for
acquitting the accused persons was possible and plausible. We
are of the view that the prosecution has failed to prove the
charges against the respondents/accused persons beyond
reasonable doubt and, therefore, the learned Trial Court has
rightly given the benefit of doubt to the respondents/accused
persons and thereby not committed any illegality as contended
by the learned A.P.P. for the State/appellant. No interference
with the impugned judgment and order of acquittal is warranted.
Patna High Court G. APP. (DB) No.11 of 2000 dt.14-07-2025
27/27
46. In view of the aforesaid discussions, the present
appeal fails. Accordingly, the same is dismissed.
(Vipul M. Pancholi, J)
(Sunil Dutta Mishra, J)
harish/-
AFR/NAFR NAFR CAV DATE N/A Uploading Date 25.07.2025 Transmission Date 25.07.2025
[ad_1]
Source link