Patna High Court
Rajeev Kumar Ray vs The State Of Bihar on 18 August, 2025
Author: Alok Kumar Pandey
Bench: Sudhir Singh, Alok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.244 of 2024
Arising Out of PS. Case No.-53 Year-1993 Thana- KHARIK District- Bhagalpur
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Rajeev kumar Ray son of Madho Rai village- Telghi Police Station -Kharik
District- Bhagalpur
... ... Appellant/s
Versus
1. The State of Bihar
2. Bharat Singh son of Late Chano Singh village- Telghi Police Station -Kharik
District- Bhagalpur
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr.Vikram Singh, Adv.
Mr.Rahul Kumar Singh, Adv.
For the Respondent/s : Mr.Bipin Kumar, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH
and
HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY
C.A.V. JUDGMENT
(Per: HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY)
Date : 18-08-2025
The present criminal appeal has been preferred
under section 372 of the Code of Criminal Procedure against the
judgment of acquittal dated 06.11.2023 passed by the learned 1st
Additional Sessions Judge, Naugachiya in Sessions Trial No.
336 of 2002 arising out of Kharik P.S. Case No. 53 of 1993,
whereby and whereunder respondent no. 2/ Bharat Singh has
been acquitted by the learned Trial Court from the charges of
Sections 302/34 of the Indian Penal Code and 27 of the Arms
Patna High Court CR. APP (DB) No.244 of 2024 dt.18-08-2025
2/18
Act.
2. The prosecution case, in brief, is that on
12.03.1993
, at about 12.00 PM the informant along with his two
brothers, namely, Niro Rai and Shankar Rai as well as two
cousin brothers, namely, Pankaj Kumar Rai and Lal Mistri had
come to western field for cutting grass. Informant and Pankaj
Rai were plucking Arandi leaves in the field of Pramod
Choudhary and informant' brother Shankar Rai and Niro Rai
along with Pramod Choudhary and Lal Mistri were going to
Basa of Pramod Choudhary. Meanwhile, respondent no. 2
Bharat Singh armed with rifle, and co-accused Arun Singh
armed with pistol, Babloo Singh armed with three-nut, Manoj
Singh armed with Axe and Three-nut, Laxmi Singh armed with
masket, Jharkhandi Singh armed with three-nut, Dhilo Singh
armed with three-nut, Surendra Singh armed with sickle,
Khagesh Singh armed with lathi, Buchhi Kumar (brother-in-law
of respondent no. 2/Bharat Singh) armed with three-nut came
and Bharat Singh (respondent no. 2) made firing and drove
away the informant's brothers. It is alleged that informant's
younger brother Shankar Rai fell down on the road and he was
caught hold by Bharat Singh, Arun Singh and Surendra Singh.
Arun Singh took sickle from the hands of Surendra Singh and
Patna High Court CR. APP (DB) No.244 of 2024 dt.18-08-2025
cut the neck from behind. It is further alleged that Bharat Singh
caught hold of victim-Shankar Rai. Thereafter, co-accused
Surendra Singh took sickle from co-accused Arun and assaulted
on right palm of victim, causing injury to that part of the body
and it is alleged that victim Shankar Rai died at the spot. It is
further alleged that informant's brother Niro Rai was chased and
caught hold by co-accused Manoj Singh, Laxmi Singh,
Jharkhandi Singh, Dhelo Singh, Khagesh and Buchhi Kumar
and thereafter, accused persons called Bharat (respondent no. 2).
It is further alleged that after killing Shankar, accused Bharat
Singh (respondent no. 2), co-accused Arun Singh and Surendra
Singh ran to the field of Beda Singh. It is further alleged that
informant also went behind them and started seeing the
occurrence. It is further alleged that accused Bharat Singh
(respondent no. 2) assaulted twice upon the neck of informant's
brother Niro by means of sickle and co-accused Manoj after taking
pasiyani from accused Bharat (respondent no. 2) assaulted on the
chest of informant's brother Niro. Thereafter, Bharat Singh
(respondent no. 2) cut the neck of Niro. It is further alleged that co-
accused Laxmi, Babloo, Jharkhandi and Manoj had caught hold
of Niro and some unknown persons were also present there.
3. On the basis of written complaint of the
informant, Kharik P.S. Case No. 53 of 1993 was instituted under
Patna High Court CR. APP (DB) No.244 of 2024 dt.18-08-2025
Sections 147, 148, 149, 302 of the IPC and Section 27 of the
Arms Act and investigation was taken up by the police. The
police after investigation submitted charge-sheet against
Respondent No. 2 and, accordingly, cognizance was taken.
Thereafter the case was committed to the Court of Sessions.
Charges were framed against the respondent no. 2 to which he
pleaded not guilty and claimed to be tried.
4. During the trial, the prosecution examined
altogether ten witnesses viz. PW1 Subhash Singh, PW2 Navin
Singh, PW3 Pankaj Kumar Rai, PW4 Subhash Mandal, PW5
Radhey Mandal @ Radhwa, PW6 Lal Mistri, PW7 Sanjay
Kumar Singh, PW8 Mukesh Singh, PW9 Shiv Nandan Rai and
PW10 Janardan Prasad Singh. No documentary evidence was
adduced on behalf of the prosecution.
5. The defence has not adduced any oral or
documentary evidence.
6. After closure of prosecution evidence, the
statement of the accused was recorded under Section 313
Cr.P.C. and after conclusion of trial, learned trial court has
acquitted the accused persons.
7. Learned counsel for the appellant submitted that
the impugned judgment of acquittal is not sustainable in the eye
Patna High Court CR. APP (DB) No.244 of 2024 dt.18-08-2025
of law or on facts. Learned trial Court has not applied its
judicial mind and erroneously passed the judgment of acquittal.
Learned counsel submitted that informant, who is appellant in
the present appeal, has not been examined. Learned counsel
further submitted that in this case during trial altogether 10
witnesses have been examined and all of them have been
declared hostile. The Doctor and the Investigating Officer of the
case have not been examined as witness, which has caused
serious prejudice to the appellant. It is further submitted that
P.W.-3 and P.W. 6, who are said to be the eye witnesses to the
occurrence as per the version of F.I.R., however they have
retracted from their earlier statement and they have been
declared hostile.
7(i). Learned counsel further submitted that the
application under section 311 Cr.P.C. filed on behalf of the
appellant during the trial was rejected by the trial Court on the
ground that the informant was watching the proceedings but
avoided his appearance during the trial. It is further submitted
that considering the above, the order passed by the trial Court
was affirmed by the Hon'ble High Court and further, the said
order was tested before the Hon'ble Supreme Court where the
Hon'ble Supreme Court has also declined to interfere with the
Patna High Court CR. APP (DB) No.244 of 2024 dt.18-08-2025
order passed by the trial Court as well as by the Hon'ble High
Court.
8. In criminal appeal against acquittal what the
Appellate Court has to examine is whether the finding of the
learned trial court is perverse and prima facie illegal. Once the
Appellate Court comes to the finding that the grounds on which
the judgment is based is not perverse, the scope of appeal
against acquittal is limited considering the fact that the legal
presumption about the innocence of the accused is further
strengthened by the finding of the Court. At this point, it is
imperative to consider the decision of the Hon'ble Supreme
Court in the case of Surajpal Singh & Ors. Versus The State
reported in 1952 SCR 193, paragraph 13 of which reads as
under:
"..the High court has full power to review
the evidence upon which the order of
acquittal was founded. But it is equally
well settled that the presumption of
innocence of the accused is further
reinforced by his acquittal by the trial Court
and the findings of the trial Court which
had the advantage of seeing the witnesses
and hearing their evidence can be reversed
only for very substantial and compelling
reasons."
Patna High Court CR. APP (DB) No.244 of 2024 dt.18-08-2025
9. In the case of Ghurey Lal versus State of Uttar
Pradesh reported in (2008) 10 SCC 450 in paragraph 75, the
Hon'ble Supreme Court reiterated the said view and observed as
under:
"The trial Court has the advantage of
watching the demeanour of the witnesses
who have given evidence, therefore, the
appellate court should be slow to interfere
with the decisions of the trial court. An
acquittal by the trial court should not be
interfered with unless it is totally perverse
or wholly unsustainable."
10. In the present appeal, the point which is
necessary for consideration in the light of the aforesaid
judgments is :
"Whether the prosecution has proved the
case beyond the shadow of reasonable
doubt ?"
11. The trial Court has analyzed the evidence of
P.Ws. 1,2 3, 4, 5, 6, 7, 8, 9 and 10 and all these witnesses have
been declared hostile as they are not supporting the case of
prosecution. They have stated that their evidences were not
recorded by the police and they did not know as to who has
killed the deceased. Though as per the version of F.I.R. P.Ws. 3
Patna High Court CR. APP (DB) No.244 of 2024 dt.18-08-2025
and 6 are the eye witnesses of occurrence as per the version of
F.I.R. but they have retracted from their earlier statement and
they were also declared hostile.
12. After going through the statement of all the
witnesses which have been recorded by the trial Court, it is
evident that all the witnesses have not supported the version of
prosecution and they failed to prove the story of prosecution.
13. We are dealing with an appeal against acquittal
and shall keep in mind the principles governing the cases of
appeal against acquittal. The principles have been reiterated by
the Hon'ble Supreme Court in catena of decisions.
14. In the case of H.D. Sundara and Others vs.
State of Karnataka reported in (2023) 9 SCC 581, Hon'ble
Supreme Court, in paragraph 8, has held as follows :
"8. In this appeal, we are called upon to
consider the legality and validity of the
impugned judgment State of Karnataka v.
H.K. Mariyapp, 2010 SCC OnLine Kar 5591
rendered by the High Court while deciding
an appeal against acquittal under Section
378 of the Code of Criminal Procedure,
1973 (for short "Cr.P.C"). The principles
which govern the exercise of appellate
jurisdiction while dealing with an appeal
against acquittal under Section 378 Cr.P.C
Patna High Court CR. APP (DB) No.244 of 2024 dt.18-08-2025
can be summarized as follows:
"8.1. The acquittal of the accused further
strengthens the presumption of innocence;
2. The appellate court, while hearing an
appeal against acquittal, is entitled to 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."
15. In Chandrappa Vs. State of Karnataka,
(2007) 4 SCC 415, Hon'ble Supreme Court after referring to
several authorities has held as follows:
"42. From the above decisions, in our considered
view, the following general principles regarding
Patna High Court CR. APP (DB) No.244 of 2024 dt.18-08-2025
powers of the appellate court while dealing with
an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon
which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on exercise of
such power and an appellate court on the evidence
before it may reach its own conclusion, both on
questions of fact and of law.
(3) Various expressions, such as, "substantial and
compelling reasons", "good and sufficient
grounds", "very strong circumstances", "distorted
conclusions", "glaring mistakes", etc. are not
intended to curtail extensive powers of an
appellate court in an appeal against acquittal. Such
phraseologies are more in the nature of "flourishes
of language" to emphasise the reluctance of an
appellate court to interfere with acquittal than to
curtail the power of the court to review the
evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in
mind that in case of acquittal, there is double
presumption in favour of the accused. Firstly, the
presumption of innocence 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 trial court.
(5) 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."
( Emphasis Supplied)
16. In Murugesan Vs. State, (2012) 10 SCC 383,
Hon'ble Supreme Court has held as follows:
Patna High Court CR. APP (DB) No.244 of 2024 dt.18-08-2025
" 18. Before proceeding any further it will be
useful to recall the broad principles of law
governing the power of the High Court under
Section 378 CrPC, while hearing an appeal
against an order of acquittal passed by a trial
Judge.
19. An early but exhaustive consideration of the
law in this regard is to be found in the decision of
Sheo Swarup v. King Emperor [(1933-34) 61 IA
398 : AIR 1934 PC 227 (2)] wherein it was held
that the power of the High Court extends to a
review of the entire evidence on the basis of
which the order of acquittal had been passed by
the trial court and thereafter to reach the necessary
conclusion as to whether order of acquittal is
required to be maintained or not. In the opinion of
the Privy Council no limitation on the exercise of
power of the High Court in this regard has been
imposed by the Code though certain principles are
required to be kept in mind by the High Court
while exercising jurisdiction in an appeal against
an order of acquittal..................................
20. The principles of law laid down by the Privy
Council in Sheo Swarup(supra) have been
consistently followed by this Court in a series of
subsequent pronouncements ......................
21. A concise statement of the law on the issue
that had emerged after over half a century of
evolution since Sheo Swarup ( Supra) is to be
found in para 42 of the Report in Chandrappa v.
State of Karnataka [(2007) 4 SCC 415
............................................................
32. In the above facts can it be said that the view
taken by the trial court is not a possible view? If
the answer is in the affirmative, the jurisdiction of
the High Court to interfere with the acquittal of
the appellant-accused, on the principles of law
referred to earlier, ought not to have been
exercised. In other words, the reversal of the
acquittal could have been made by the High Court
only if the conclusions recorded by the learned
trial court did not reflect a possible view. It must
be emphasised that the inhibition to interfere must
be perceived only in a situation where the view
Patna High Court CR. APP (DB) No.244 of 2024 dt.18-08-2025
taken by the trial court is not a possible view. The
use of the expression "possible view" is conscious
and not without good reasons. The said expression
is in contra23. Having dealt with the principles of
law that ought to be kept in mind while
considering an appeal against an order of acquittal
passed by the trial court, we may now proceed to
examine the reasons recorded by the trial court for
acquitting the accused in the present case and
those that prevailed with the High Court in
reversing the said conclusion and in convicting
and sentencing the appellant-accused.
33. The expressions "erroneous", "wrong" and
"possible" are defined in Oxford English
Dictionary in the following terms:
"erroneous.-- wrong; incorrect.
wrong.--(1) not correct or true, mistaken.
(2) unjust, dishonest, or immoral.
possible.--(1) capable of existing, happening, or
being achieved.
(2) that may exist or happen, but that is not certain
or probable."
34. It will be necessary for us to emphasise that a
possible view denotes an opinion which can exist
or be formed irrespective of the correctness or
otherwise of such an opinion. A view taken by a
court lower in the hierarchical structure may be
termed as erroneous or wrong by a superior court
upon a mere disagreement. But such a conclusion
of the higher court would not take the view
rendered by the subordinate court outside the
arena of a possible view. The correctness or
otherwise of any conclusion reached by a court
has to be tested on the basis of what the superior
judicial authority perceives to be the correct
conclusion. A possible view, on the other hand,
denotes a conclusion which can reasonably be
arrived at regardless of the fact where it is agreed
upon or not by the higher court. The fundamental
distinction between the two situations have to be
kept in mind. So long as the view taken by the
trial court can be reasonably formed, regardless of
whether the High Court agrees with the same or
not, the view taken by the trial court cannot be
interdicted and that of the High Court supplanted
over and above the view of the trial court.
Patna High Court CR. APP (DB) No.244 of 2024 dt.18-08-2025
35. A consideration on the basis on which the
learned trial court had founded its order of
acquittal in the present case clearly reflects a
possible view. There may, however, be
disagreement on the correctness of the same. But
that is not the test. So long as the view taken is not
impossible to be arrived at and reasons therefor,
relatable to the evidence and materials on record,
are disclosed any further scrutiny in exercise of
the power under Section 378 CrPC was not called
for."
(Emphasis Supplied)
17. In Hakeem Khan Vs. State of M.P., (2017) 5
SCC 719 , Hon'ble Supreme Court has held as follows:
" 9 [Ed. : Para 9 corrected vide Official
Corrigendum No. F.3/Ed.B.J./29/2017 dated 13-7-
2017.] . Having heard the learned counsel for the
parties, we are of the view that the trial court's
judgment is more than just a possible view for
arriving at the conclusion of acquittal, and that it
would not be safe to convict seventeen persons
accused of the crime of murder i.e. under Section
302 read with Section 149 of the Penal Code...."
(Emphasis Supplied)
18. In Babu Sahebagouda Rudragoudar Vs. State
of Karnataka, 2024 SCC Online SC 561, Hon'ble Supreme
Court, after referring to relevant precedents, has observed as
follows:
"39. Thus, it is beyond the pale of doubt that the scope
of interference by an appellate Court for reversing the
judgment of acquittal recorded by the trial Court in favour
of the accused has to be exercised within the four corners
of the following principles:
(a) That the judgment of acquittal suffers from
Patna High Court CR. APP (DB) No.244 of 2024 dt.18-08-2025
patent perversity;
(b) That the same is based on a misreading/omission
to consider material evidence on record;
(c) That no two reasonable views are possible and
only the view consistent with the guilt of the
accused is possible from the evidence available on
record.
40. The appellate Court, in order to interfere with
the judgment of acquittal would have to record
pertinent findings on the above factors if it is
inclined to reverse the judgment of acquittal
rendered by the trial Court."
(Emphasis Supplied)
19. In the present case, contention has been raised
by the learned counsel for the appellant that informant, who is
appellant in the present appeal, has not been examined. The
doctor and the Investigating Officer has also not been examined.
The appellant filed an application under section 311 Cr.P.C.
during trial, which was rejected by the trial Court on the ground
that informant was watching the proceedings and avoided his
appearance during trial. The order of the trial Court, on the said
point, was affirmed by the High Court and further said order has
been tested before the Hon'ble Supreme Court where Hon'ble
Supreme Court also declined to interfere with the order passed
by the trial Court as well as the High Court.
20. Further, from perusal of the record, it transpired
that occurrence is of 12.03.1993 thereafter F.I.R. was lodged.
Cognizance was taken and the case was committed to the Court
Patna High Court CR. APP (DB) No.244 of 2024 dt.18-08-2025
of Sessions on 22.04.2002. The statement of the accused under
section 313 Cr.P.C. was recorded on 09.06.2017. Finally, the
judgment of acquittal was passed by the trial Court on
06.11.2023.
21. After perusing the list of dates and events, it is
crystal clear that more than two decades has already elapsed
since initiation of the prosecution proceeding and sufficient time
was available for the prosecution to produce witnesses but for
the reasons best known to the prosecution side for not producing
remaining witnesses of prosecution, informant has not made
himself available as a witness.
22. We are aware of the fact that the trial Court
recorded the statement of witnesses and it has been observed by
the trial Court that appellant was watching the proceeding, as
contended by the counsel of appellant, and informant has not
made himself available as a witness before the trial Court. The
order passed by the trial Court has already been upheld by the
High Court as well as the Hon'ble Supreme Court. It is not a
pragmatic approach to take advantage of his own fault wherein
trial Court recorded presence of witness who is none other than
informant himself. In view of the above, the contention of the
learned counsel for the appellant is neither tenable nor
Patna High Court CR. APP (DB) No.244 of 2024 dt.18-08-2025
sustainable in the light of the fact that where 10 witnesses have
already been examined on behalf of prosecution side then, it
cannot be presumed that informant or any other witness had no
reasonable opportunity to get themselves examined as a witness.
It is unfathomable to seek remedy at any stage where sufficient
opportunity was available during course of trial at the stage of
examination of witnesses on behalf of the prosecution. It is
beyond perception of any stretch of imagination that any
remedy would not be available for all times to come where
substantial objective to seek remedy practically not viable where
prosecution proceeding was put into motion by lodging the
F.I.R. in 12.03.1993 and the judgment of acquittal was delivered
on 06.11.2023 covering almost 30 years.
23. It is inconceivable that appellant has not pointed
any reason as to why remaining witnesses have not been
examined during course of trial proceeding, despite being
availability of informant, who is one of the witnesses watching
the proceeding. The defence taken by the appellant is bereft of
any merit in the light of the fact that 10 witnesses have been
examined during the course of trial. From the contention of the
appellant, it is evident that the trial Court has recorded the
finding that informant was watching the proceedings but for the
Patna High Court CR. APP (DB) No.244 of 2024 dt.18-08-2025
reasons best known to him he did not present himself as a
witness and for the said score he cannot blame others for non-
examination of others as witnesses. Where duty is cast upon the
prosecution to produce witnesses in support of prosecution
story, on the issue of examination of witness under section 311
Cr.P.C. the finding of trial Court is affirmed by the High Court
and the said order was tested before the Hon'ble Supreme Court
where the Supreme Court has declined to interfere with the
order passed by the trial Court as well as by the High Court, as
contended by the learned counsel for the appellant in the
foregoing paragraph 7(i) of the present judgment. The trial
Court after mentioning the conduct of the informant has passed
the order.
24. Thus, in the opinion of this Court, the trial Court
has taken a plausible view based on the evidence available on
the record. The view taken by the trial Court cannot be held to
be bad or perverse. Under such circumstances, no case for
interference with the impugned judgment is made out.
25. In the result, the present criminal appeal
preferred against the judgment of acquittal dated 06.11.2023
passed in Sessions Trial No. 336 of 2002 arising out of Kharik
P.S. Case No. 53 of 1993 by learned 1 st Additional Sessions
Patna High Court CR. APP (DB) No.244 of 2024 dt.18-08-2025
Judge, Naugachiya is dismissed at the admission stage itself.
( Alok Kumar Pandey, J)
I agree.
(Sudhir Singh, J)
mcverma/-
AFR/NAFR AFR
CAV DATE 06.08.2025
Uploading Date 18.08.2025
Transmission Date 18.08.2025
