Sunita Devi vs The State Of Bihar
2025 Latest Caselaw 3244 Patna

Patna High Court

Sunita Devi vs The State Of Bihar on 27 August, 2025

Author: Sudhir Singh

Bench: Sudhir Singh, Rajesh Kumar Verma

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                      CRIMINAL APPEAL (DB) No.1458 of 2024
         Arising Out of PS. Case No.-93 Year-2023 Thana- BENIPATTI District- Madhubani
     ======================================================
     Sunita Devi, W/O Nathuni Yadav, R/o Village - Kerwa, P.S. - Saharghat,
     Distt.- Madhubani

                                                                       ... ... Appellant/s
                                           Versus

1.   The State of Bihar
2.   Dukhi Yadav, S/o Rambriksh Yadav, R/o Village - Kerba, P.S. - Saharghat,
     Distt.- Madhubani

                                               ... ... Respondent/s
     ======================================================
     Appearance :
     For the Appellant/s     :        Mr.Murari Narain Chaudhary, Advocate
                                      Mr. Brahmanand Kumar, Advocate
                                      Mr. Vijay Kumar, Advocate
     For the Respondent/s    :        Mr.Abhimanyu Sharma, APP
     ======================================================
     CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH
             and
             HONOURABLE MR. JUSTICE RAJESH KUMAR VERMA
     ORAL JUDGMENT

(Per: HONOURABLE MR. JUSTICE SUDHIR SINGH)

Date : 27-08-2025

The present criminal appeal has been preferred under

Section 372 of the Code of Criminal Procedure against the

judgment of acquittal dated 07.10.2024 passed by the learned

Additional Sessions Judge- III, Madhubani in Sessions Trial No.

633 of 2023, arising out of Benipatti P.S. Case No. 93 of 2023,

whereby Respondent No. 2 has been acquitted from the charge

of Sections 302 and 201/34 of the Indian Penal Code.

2. The prosecution case, in brief, is that the accused Patna High Court CR. APP (DB) No.1458 of 2024 dt.27-08-2025

persons, namely, Amit Kumar, Arun Kumar Safi, Sita Saran

Yadav, Dukhi Yadav, Bhima @ Vijay Kumar Mahto used to run

illegal liquor business in the village of the informant. One

Pradeep Kumar who was the son of the informant used to object

to the illegal business done by the accused persons. However,

from several days before the alleged occurrence, Pradeep Kumar

developed a friendship with the accused persons, irrespective of

the warnings given by the informant. On 07.05.2023, around

10:00 PM, all the five accused persons named above came to the

house of the informant on two motorcycles, and called her son

to go to the Barati of the son of Kishan Ram. The son of the

informant went to the Barati, and he sat along with Amit and

Arun Safi on a motorcycle. On the very next morning, the

informant saw that every person had returned from Barati

except her son Pradeep and she called on his Mobile No.

7070783883, which was switched off. Thereafter, she enquired

about her son from the neighbouring people and also from Amit

and Arun Safi, but they said that they had no knowledge about

Pradeep. Thereafter, she heard that a dead body of an unknown

person has been found by the police, and she rushed to Benipatti

Police Station. The informant was shown the photograph of the

deceased person, and she identified that the photograph was of Patna High Court CR. APP (DB) No.1458 of 2024 dt.27-08-2025

her son Pradeep. Then informant having strong suspicion that

her son was killed by Amit Kumar, Arun Kumar Safi, Sita Saran

Yadav, Dukhi Yadav and Bhima @ Vijay Kumar Mahto,

registered an F.I.R. against all the accused persons.

3. On the basis of the application of the informant,

Benipatti P.S. Case No. 93 of 2023 was instituted under Sections

302, 201 and 120B/34 of the I.P.C. and investigation was carried

out 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 trial, the prosecution examined altogether

nine witnesses i.e. PW1 Manoj Yadav, PW 2 Umesh Yadav,

PW3 Dr. Kunal Ahand, PW4 Sunita Devi, PW5 Lalu Kumar

Yadav, PW6 Bipin Kumar Yadav, PW7 Praveen Kumar, PW8

Sitaram Prasad and PW9 Suraj Kumar. The prosecution has also

produced certain documents which were marked as Exhibits,

i.e., Signature of Manoj Yadav on the seizure list, Postmortem

report, Seizure list of mobile phone of deceased, Endorsement

over the typed application, Formal FIR, Seizure list of Apache

Motorcycle, and the chargesheet. No witness has been examined Patna High Court CR. APP (DB) No.1458 of 2024 dt.27-08-2025

on behalf of the defence. 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 acquitted

the accused.

5. The learned trial court acquitted the accused on the

ground that the entire prosecution was based on circumstantial

evidence, and the evidence was not linked together in a manner

sufficient to prove the guilt of the accused beyond the shadow of

reasonable doubt. In paragraph 12 of the impugned judgment,

the learned trial court held as under:

"It is evident after going through the ocular account of the testimonies of the witnesses that the present case is totally based upon the circumstantial evidence and the golden principle of the circumstance based case is that the chain of incident must be connected with each other but contrary to that principle in the present case there is complete lack of interconnection of the chains of circumstances because the informant has stated that she saw the five accused persons gathered at her house including Dukhi Yadav and her son left for barat sitting alongwith Amit and Arun on their motorcycle at about 10:00 PM. The P.W 1 & 2 has stated that they saw Amit, Arun, Dukhi at Brahamasthan but later on according to the P.W 5 that Amit and Arun went towards the house of Pradeep Kumar and Dukhi Yadav was remained there at Brahamasthan and it was about 08:00 PM. Patna High Court CR. APP (DB) No.1458 of 2024 dt.27-08-2025

There is complete contradiction in the statement made by the PW 5 & 4 where PW 4 has stated that the accused Dukhi Yadav was also arrived at her house along with other accused persons but PW 5 has stated that he saw only Arun and Antit were going towards the house of Pradeep. Further the PW 4 has although stated that her son went away alongwith Arun, Amit and other accused persuns but after departure from the place of the infonnant none of the witness had seen the accused persons alongwith Pradeep in the way, at the barat or near the PO. Land where the dead body was found and therefore the chains of circumstances are not connected at all"

6. Learned counsel for the appellant has submitted

that the impugned judgment of acquittal is illegal and passed by

the learned trial court without application of judicial mind

properly. He further submitted that the learned trial court has not

taken into consideration that PW8, who was the Investigating

Officer of the case, had done a very defective investigation as he

had seized the dead body of the deceased hanging from a tree

and from whose possession, a mobile phone was recovered, but

the IO did not try to obtain even the call details from it. Learned

counsel further submitted that it was a case of circumstantial

evidence in which after recovery of dead body, the chain of

circumstance was fully completed. Learned counsel for the

appellant further submitted that as per the allegation, the Patna High Court CR. APP (DB) No.1458 of 2024 dt.27-08-2025

deceased had accompanied the accused persons including

Respondent No. 2 and even his bike was also used for this

purpose, but unfortunately, without assigning any reason, this

fact has not been considered by the learned trial court. Learned

counsel submitted that the learned trial court has completely

overlooked the evidence of the prosecution witnesses like PW2,

PW 4 and PW6, as from perusal of their evidences, it would be

apparent that the son of the appellant was killed only for the

reason that the accused persons were treating him as the

informer of the police and for his elimination, the Respondent

No. 2 had played a major role, in which his bike was also used

for carrying the deceased for his killing.

7. On the other hand, the learned counsel for the

respondents submitted that there is no perversity in the

judgment of the learned trial court, and the prosecution had

failed to prove the guilt of the accused before the learned trial

court. Therefore, the judgment of the learned trial court requires

no interference in the present case.

8. We have heard learned counsel for the appellant

and the respondent and have also gone through the records of

the case.

9. The sole question that requires consideration by this Patna High Court CR. APP (DB) No.1458 of 2024 dt.27-08-2025

Court is whether the impugned judgment of acquittal requires

any interference by this Court.

10. The entire prosecution case is built on

circumstantial evidence, that there was an enmity between the

deceased and the accused persons earlier and that the deceased

was allegedly last seen together with the accused persons.

However, it should be noted that the deceased accompanied the

accused persons with his own will, and there is nothing on

record to show the contrary. The evidence of witnesses are not

consistent, rather contradictory, as none of the prosecution

witnesses have stated in their evidence that all five persons, who

were named in the F.I.R. by the informant, were seen together

going to the Barat. The learned trial court, in Paragraph 12 of

the impugned judgment, held the following:

"The P.W 1 & 2 has stated that they saw Amit, Arun, Dukhi at Brahamasthan but later on according to the P.W 5 that Amit and Arun went towards the house of Pradeep Kumar and Dukhi Yadav was remained there at Brahamasthan and it was about 08:00 PM. There is complete contradiction in the statement made by the P.W 5 & 4 where P.W 4 has stated that the accused Dukhi Yadav was also arrived at her house along with other accused persons but P.W 5 has stated that he saw only Arun and Amit were going towards the Patna High Court CR. APP (DB) No.1458 of 2024 dt.27-08-2025

house of Pradeep. Further the P.W 4 has although stated that her son went away alongwith Arun, Amit and other accused persons but after departure from the place of the informant none of the witness had seen the accused persons along with Pradeep in the way, at the barat or near the P.O. Land where the dead body was found."

11. We find that there are material contradictions in

the evidence of the prosecution witnesses and the informant in

the present case. The chain of circumstances leading to the death

of the informant's son has not been completed.

12. At best, this can be a case of 'last seen together'.

However, for proving an offence under these circumstances, the

time gap between the point when the deceased was last seen

alive and the point where the deceased was found dead, should

not be so long. Also, it should be conclusively proved by the

prosecution that the accused were last seen alive with the

deceased. The same as been observed by the apex court in

Bodhraj v. State of J&K as reported in (2002) 8 SCC 45, the

relevant paragraph of which is reproduced as under:

"31. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Patna High Court CR. APP (DB) No.1458 of 2024 dt.27-08-2025

It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases."

13. The apex court further in Ramreddy Rajesh

Khanna Reddy v. State of AP, reported in (2006) 10 SCC 172,

held the following:

"27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration."

14. In the present case, no such conclusive evidence

has been produced by the prosecution that the son of the

informant was last seen alive with Respondent No. 2, Dukhi

Yadav. Even if the allegations of the informant may be taken

into account, there is a time gap of 12 hours, between, when her

son allegedly accompanied the accused persons and when the

dead body was recovered. Further, no corroborative evidence

has been produced by the prosecution to prove the last seen Patna High Court CR. APP (DB) No.1458 of 2024 dt.27-08-2025

theory. Therefore, the prosecution has not been able to prove the

guilt of accused beyond the shadow of reasonable doubts in the

present case.

15. The findings recorded by the learned trial court do

not suffer from any illegality and perversity. In a criminal case,

it is incumbent upon the prosecution to prove the guilt of the

accused beyond the shadow of a reasonable doubt. Wherever,

any doubt is cast upon the case of the prosecution, the accused

is entitled to the benefit of doubt.

16. In criminal appeal against acquittal what the

Appellate Court has to examine is whether the finding of the

learned court below is perverse and prima facie illegal. Once the

Appellate Court comes to the finding that the grounds on which

the judgment is based are 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 Mrinal Das vs. State of Tripura reported in

(2011) 9 SCC 479, paragraphs 13 & 14 of which read as under:

"13. It is clear that in an appeal against acquittal in the absence of perversity in the judgment and order, Patna High Court CR. APP (DB) No.1458 of 2024 dt.27-08-2025

interference by this Court exercising its extraordinary jurisdiction, is not warranted. However, if the appeal is heard by an appellate court, it being the final court of fact, is fully competent to reappreciate, reconsider and review the evidence and take its own decision. In other words, the law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court. If two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal.

14. There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is found and to come to its own conclusion. The appellate court can also review the conclusion arrived at by the trial court with respect to both facts and law. While dealing with the appeal against acquittal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. An order of acquittal is to be interfered with only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason Patna High Court CR. APP (DB) No.1458 of 2024 dt.27-08-2025

for interference.........."

17. In the case of Ghurey Lal v. 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:

"75. 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."

18. Thus, an order of acquittal is to be interfered with

only for compelling and substantial reasons. In case if the order

is clearly unreasonable, it is a compelling reason for

interference. But where there is no perversity in the finding of

the impugned judgment of acquittal, the Appellate Court must

not take a different view only because another view is possible.

It is because the trial court has the privilege of seeing the

demeanour of witnesses and, therefore, its decision must not be

upset in absence of strong and compelling grounds.

19. In view of the above, we do not find any illegality

and perversity in the findings recorded by the trial court.

Patna High Court CR. APP (DB) No.1458 of 2024 dt.27-08-2025

20. Accordingly, the present criminal appeal is

dismissed.

(Sudhir Singh, J)

(Rajesh Kumar Verma, J) Sujit/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          30.08.2025
Transmission Date       30.08.2025