Patna High Court
Sunita Devi vs The State Of Bihar on 10 February, 2025
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.688 of 2024
Arising Out of PS. Case No.-43 Year-2020 Thana- BANGAWON District- Saharsa
======================================================
Sunita Devi (Female), W/O Late Dinesh Kumar Dinkar, aged about 40 years,
Resident of Village-Gamhariya, O.P.-Patarghat, P.S.-Saurbazar, District-
Saharsa, Bihar
... ... Appellant/s
Versus
1. The State of Bihar
2. Amrendra Kumar Singh @ Panna Singh S/O Thakur Prasad Singh, R/O
Village-Gamhariya,O.P.-Baijnathpur,P.S.-Saurbazar,Distt-Saharsa,Bihar
Presently residing at Village-Pama,O.P.-Patarghat,P.S.-Saurbazar,Distt-
Saharsa
3. Gajendra Yadav, S/O Lakshmi Yadav, resident of Dumrail, P.S. and District-
Saharsa
4. Sanjeev Yadav, S/O Rameshwar Yadav, R/O-Dumrail, P.S. and District-
Saharsa
5. Dezi Kumari, W/O- Late Dinkar Kumar Dinkar, resident of Village-
Gamhariya, O.P.-Baijnathpur, P.S.-Saurbazaar, District-Saharsa, Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant : Mr. Sanjeev Kumar, Advocate
Mr. Ashish Kumar Sinha, Advocate
For the State : Mr. Abhimanyu Sharma, APP
For the Respondent : Mr. N. K.Agrawal, Senior Advocate
Mr. Pawan Kumar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE RAMESH CHAND MALVIYA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAMESH CHAND MALVIYA)
Date: 10-02-2025
Heard Mr. Ashish Kumar Singh, learned counsel
for the appellant, Mr. N. K. Agrawal and Mr. Pawan Kumar,
learned counsels for the respondents and Mr. Abhimanyu
Sharma, learned APP for the State.
2. The present appeal has been directed against
Patna High Court CR. APP (DB) No.688 of 2024 dt.10-02-2025
2/31
the judgment and order of acquittal dated 19.10.2023 passed by
Learned Sessions Judge, Saharsa in Bangaon P.S. Case No. 43
of 2020, dated 05.07.2020, Session Trial No. 207 of 2021 in
which the learned trial Court acquitted the respondents from the
charges leveled against them under Sections 302/34, 120B/34
and 201/34 of the Indian Penal Code (hereinafter referred as
'IPC').
Prosecution Case
3. The Prosecution case in brief is that, the FIR
has been lodged upon the farbeyan of one Dezi Kumari stating
therein that her husband ("the deceased") was allegedly
murdered by the deceased's first wife Sunita Devi in furtherance
of a conspiracy with her two brothers and one brother-in-law.
The informant stated that Sunita Devi had earlier filed a case
against the deceased which was still sub-judice. She stated that
on 03.07.2020, the deceased took a Scorpio vehicle on hire and
went to Bhagalpur and while returning back he called the
informant at around 1 PM to inform her that he would be taking
the vehicle to Patna on hire for three days. The informant
however found that the deceased had actually gone to Gamharia
village and from there he left for Patna. On the same night at
around 11 PM, the informant's daughter fell sick and she called
Patna High Court CR. APP (DB) No.688 of 2024 dt.10-02-2025
3/31
the deceased to inform him but his phone was out of network
coverage. The next day, on 04.07.2020 at around 10-11 AM she
tried calling her husband again but the phone was not reachable.
She went to Saurbazaar to get her daughter treated and from
there itself she left for Gamharia village where her brother-in-
law showed her a viral Whatsapp image of her deceased
husband beside the Scorpio vehicle. The Whatsapp image
showed the place where the deceased' body was found to be
Meghdhagra Ghat under Bangaon P.S. On reaching the place
she saw the dead body of her husband, Dinesh Kumar Dinkar
and fainted there itself. She gave her statement to the police on
05.07.2020
in which she alleged that Sunita Devi, the deceased'
first wife had killed her husband in conspiracy with her brothers
and brother-in-law.
4. On the basis of the fardbeyan the Bangaon
Police Station lodged an F.I.R. bearing P.S. Case No. 43 of 2020
under Sections 302/34, 120B/34 and 201/34 of the IPC and
Section 27 of the Arms Act against 1. Sunita Devi, 2. Roushan
Yadav, 3. Anil Yadav, 4. Brother-in-law of Sunita Devi.
5. During the investigation, police submitted
charge sheet no. 92 of 2020 dated 25.10.2020, under Sections
302, 201 and 120 (B) of IPC and Section 27 of Arms Act against
Patna High Court CR. APP (DB) No.688 of 2024 dt.10-02-2025
1. Gajendra Yadav, 2. Sanjeev Kumar Yadav, 3. Amendra Kumar
Singh @ Panna Singh, 4. Raushan Kumar and 5. Informant Dezi
Kumari and further supplementary investigation against the
named persons in the F.I.R was continued. The final form was
submitted vide supplementary charge sheet no. 105 of 2020
dated 25.10.2020 and named persons in the F.I.R were not sent-
up for the trial. The Additional Chief Judicial Magistrate was
pleased to take cognizance under Sections 302, 201 and 120(B)/
34 of IPC and Section 27 of the Arms Act against the accused
named in the charge-sheet and the case was committed to the
Court of Sessions vide order dated 08.09.2021 passed by
learned Additional Chief Judicial Magistrate. The record was
received in the Sessions Court on 15.09.2021. Out of the five
accused persons, one accused Raushan Kumar was absent for a
long time and after declaring him as absconder in the case, a
supplementary case was opened in the Sessions Court for his
trial vide order dated 27.04.2023.
6. The charge was framed on 10.05.2023 under
Sections 302/34, 120 B, and 201 of IPC and Section 27 of the
Arms Act against all the rest four accused persons namely 1.
Amendra Kumar Singh @ Panna Singh, 2. Gajendra Yadav, 3.
Sanjeev Yadav, and 4. Dezi Kumari.
Patna High Court CR. APP (DB) No.688 of 2024 dt.10-02-2025
Analysis of Prosecution Witnesses:
7. On behalf of the prosecution, altogether
thirteen witnesses were examined and several documents were
exhibited during the course of trial. The statement of the
accused has been recorded under Section 313 of the Cr.P.C in
which they have denied the allegations raised against them and
put up a defence of innocence. The list of the prosecution
witnesses as well as the documents exhibited on behalf of the
prosecution are being shown here-under in a tabular form:-
List of Prosecution Witnesses
PW- 1 Vikash Kumar
PW- 2 Fulia Devi @ Fulariya Devi
PW- 3 Kundan Kumar Yadav (brother of
deceased)
PW- 4 Dr. Masrur Alam (Medical
Officer)
PW- 5 Ramiqubal Paswan (First
Investigating Officer)
PW- 6 Saroj Kumar (Third Investigating
Officer)
PW- 7 Manglesh Kumar Madhukar
(Technical Cell in-charge)
PW- 8 Manoj Kumar
PW- 9 Budhan Kumar @ Budhan Tanti
PW- 10 Jay Kumar
PW- 11 Asha Devi
PW- 12 Jayram Sharma (Second
Investigating Officer)
PW- 13 Soni Kumari
Patna High Court CR. APP (DB) No.688 of 2024 dt.10-02-2025
List of Exhibits by Prosecution:
Ext. P-1 Post-mortem report
Ext. P-2 Signature of Ramiqubal Paswan on
the fardbeyan
Ext. P-3 Endorsement by SHO for registering
the FIR and taking up the
investigation
Ext. P-4 Formal F.I.R
Ext. P-5 Attested/certificated documents of
CDR/ SDR, location and documents
related to the technical support of
related mobile numbers
Ext. P-6 Signature of Seizure witness Budhan
Kumar @ Budhan Tanti on seizure
list
Ext. P-7 Signature of Seizure witness namely
Ajay Kumar upon the seizure list
Ext. P-8 Signature of Asha Devi on fardbeyan
Ext. P-9 Signature of informant on fardbeyan
Ext. P-10 Seizure list exhibited by PW-12
Second I.O. Jayram Sharma
Ext. P-11 Carbon-copy of inquest report
Findings of the Trial Court
8. The learned trial Court after analyzing the
evidences on the record found that there was no direct evidences
which could establish that the four-accused were involved in the
alleged murder of the deceased. The second wife of the
deceased who was the informant in the present case, named
Sunita Devi the first wife of the deceased in her fardbeyan.
Patna High Court CR. APP (DB) No.688 of 2024 dt.10-02-2025
However, on investigation it was found that the informant
herself was involved in the commission of the offence. There
was no eye-witness to the alleged occurrence. In the absence of
any direct evidence, the accused could be convicted if there was
sufficient circumstantial evidence. However, the trial Court
found that the evidence adduced by the prosecution did not fully
establish the chain of events so as to prove the guilt of the
accused and also exclude any other theory of the crime. The trial
Court relied upon the judgment of the Hon'ble Supreme Court
in State of Punjab v. Kewal Krishnan, Criminal Appeal No.
2128 of 2014 wherein it was stated that:
"17. This is a case based on circumstantial
evidence. It is trite law that to convict an
accused on the basis of circumstantial
evidence, the prosecution must prove
beyond reasonable doubt each of the
incriminating circumstances on which it
proposes to rely; the circumstance(s) relied
upon must be of a definite tendency
unerringly pointing towards accused's guilt
and must form a chain so far complete that
there is no escape from the conclusion that
within all human probability it is the
accused and no one else who had
committed the crime and they (it) must
exclude all other hypothesis inconsistent
with his guilt and consistent with his
innocence."
8.i. The trial Court also relied on the decision of
this Court on Ashok Chaudhary vs The State Of Bihar,
Criminal Appeal (DB) No.446 of 2015, wherein it was stated as
Patna High Court CR. APP (DB) No.688 of 2024 dt.10-02-2025
follows:
"In the case of Shailendra Rajdev Pasvan
& Ors. Vs. State of Gujarat & Ors, reported
in (2020) 14 SCC 750, wherein the Hon'ble
Supreme Court has observed in Paragraph-
17 as under:
"17. It is well settled by now that in a case
based on circumstantial evidence the courts
ought to have a conscientious approach and
conviction ought to be recorded only in
case all the links of the chain are complete
pointing to the guilt of the accused. Each
link unless connected together to form a
chain may Patna High Court CR. APP (DB)
No.446 of 2015 dt.04-09-2023 suggest
suspicion but the same in itself cannot take
place of proof and will not be sufficient to
convict the accused."
29. Thus, it has been observed by the
Hon'ble Supreme Court that each link,
unless connected together to form a chain,
may suggest suspicion but the same in itself
cannot take place of proof and will not be
sufficient to convict the accused. It is
further revealed from the observations
made by the Hon'ble Supreme Court in the
aforesaid decisions that the circumstance of
last seen together does not by itself and
necessarily lead to the inference that it was
the accused who had committed the crime.
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."
8.ii. Based on the above contentions, the trial
Court found that the guilt of the accused persons was not proved
beyond all reasonable doubt and hence the trial Court acquitted
Patna High Court CR. APP (DB) No.688 of 2024 dt.10-02-2025
all the four co-accused from the charges leveled against them.
Submission on behalf of the Appellant
9. The Learned counsel for the appellant has
assailed the impugned judgment saying that the judgment is
based on mere conjectures and surmises and is against the
materials available on the record. Learned trial Court failed to
consider and appreciate the prosecution witnesses who have
fully supported the prosecution case. The evidence on record
does not support the finding arrived at.
9.i. Learned counsel for the appellant further
submitted that in the present case during the course of
investigation after scrutiny of the call details, police found the
involvement of informant herself along with other accused
persons who were not named in the FIR in the commission of
the offence. He next submits that during the course of
investigation I.O. of the present case submitted charge-sheet
under Sections 302, 201 and 120(B)/34 of the IPC and Section
27 of the Arms Act against the informant of the present case
along with other co-accused and upon the same learned Court of
Magistrate was pleased to take cognizance and summon all four
accused persons not named in the FIR but in absence of any
eye-witness and direct evidence learned trial Court has not
Patna High Court CR. APP (DB) No.688 of 2024 dt.10-02-2025
carefully examined other circumstantial evidence in right
perspective and not corroborated with each other and has been
pleased to pass the judgment in a mechanical manner. The
judgment of the learned trial Court acquitting respondents of the
charges is bad and the same is liable to be interfered with.
Submission on behalf of Respondent/State
10. The appeal has been opposed by the learned
senior counsel for the respondent no. 2 Mr. N. K. Agrawal
assisted by Mr. Pawan Kumar and learned Additional Public
Prosecutor for the State Mr. Abhimanyu Sharma. Learned
Additional Public Prosecutor for the State has submitted that on
a bare perusal of the impugned judgment, it would appear that
on the basis of the confessional statements of the
accused/respondents, the police recovered a country made pistol
from the place of occurrence but no weapon was mentioned in
the seizure list prepared by the police and neither was the
weapon produced before the trial Court. He further submitted
that PW-9 and 10 who were independent witnesses, in presence
of whom the recovery was made have also stated in Para-3 of
their cross-examination that no recovery was made in presence
of them and that the police made them sign blank pages.
10.i. Learned counsel for the respondent no. 2
Patna High Court CR. APP (DB) No.688 of 2024 dt.10-02-2025
submitted that the statement of the witnesses mentioned in the
seizure list was not taken by the police and the charge-sheet
with respect to Bangaon P.S. Case no. 52 of 2020 under Section
25(1-B) (a) of Arms Act was submitted without obtaining the
approval of the District Magistrate and thus the recovery of the
country made pistol becomes doubtful. The certified copies of
the CDR/SDR reports submitted by PW-7 do not mention the
details of the mobile numbers. Further, although the CDR report
showed that maximum calls were made between the deceased
and Respondent No. 4 Sanjeev Kumar, there is no evidence on
record which shows the details of the conversation or that it was
the respondent himself who had talked to the deceased.
10.ii. He further submitted that PW-6 Saroj
Kumar who was one of the Investigating Officers in the present
case stated in Para-15 of his cross-examination that he did not
verify the voice of the accused/respondents as to whether it was
they who talked to the deceased on the date of occurrence.
Further when the accused were arrested, their voice was not sent
for verification. PW-13, daughter of the deceased is the only
witness who has stated that there was an illicit relationship
between Gajendra Yadav and Dezi Kumari. As per her statement
she got to know about their relationship from her grandmother,
Patna High Court CR. APP (DB) No.688 of 2024 dt.10-02-2025
PW-2 but the latter did not mention anything about it in her
statement before the Court. He next submits that there are
material inconsistencies between PW-13's statements which she
made before the police and her statements before the Court.
10.iii. On the strength of the aforementioned
submissions, learned Additional Public Prosecutor and learned
counsel for the respondent no. 2 submitted that no interference
is required with the impugned judgment of the learned trial
Court.
Consideration
11. We have heard learned counsel for the
appellant, learned counsel for the respondent and learned
Additional Public Prosecutor for the State as also perused the
trial courts records.
12. Before we proceed to consider the rival
submissions of the parties, it would be necessary to appreciate
the evidences available on the record.
13. PW-1, Vikash Kumar turned hostile. PW-2,
Fulia Devi @ Fulariya Devi is the mother of the deceased who
has stated in her examination-in-chief that her son had first
married Sunita Devi and they had one daughter. She stated that
Respondent No. 3 Gajendra Yadav and Respondent No. 5 Dezi
Patna High Court CR. APP (DB) No.688 of 2024 dt.10-02-2025
Kumari used to physically assault her son. Dezi Kumari had
allegedly made the deceased transfer land in her name and had
also taken the vehicle after which she murdered the deceased.
She identified Respondent Nos. 3 and 5 namely Gajendra Yadav
and Dezi Kumari.
13.i. In her cross-examination she stated that she
had not seen the papers of the land which she stated was
transferred by her deceased son to Dezi Kumari.
14. PW-3 Kundan Kumar brother of the deceased
in his examination-in-chief has stated that the occurrence took
place at the night of 03.07.2020. He stated that Respondent No.
3 Gajendra Yadav used to visit the deceased's house. Dezi
Kumari later started living in a rented place belonging to
Gajendra Yadav in Saharsa. The first wife of the deceased,
Sunita Devi used to live at her maternal home in Laxmipur with
her daughter. One day there was an altercation between Dezi
Kumari and the deceased Dinesh Kumar Dinkar following
which Dezi Kumari threatened him. He stated that the dead
body of his brother was recovered from the jungle behind Devna
Mandir.
14.i. In Para-7 of his cross-examination he stated
that the deceased had filed a case against PW-3 himself. In Para-
Patna High Court CR. APP (DB) No.688 of 2024 dt.10-02-2025
10 he stated that he was not aware if his deceased brother was
involved in buying and selling of land in Ghamaria with
Gajendra Yadav but later stated that his deceased brother had
sold his land to Gajendra Yadav. In Para-12 of his cross-
examination he stated that he did not see the occurrence.
15. PW-4 Dr. Mashrur Alam stated in his
examination-in-chief that on 04.07.2020 he was posted as
Medical Officer at Sadar Hospital, Saharsa. At 2:35 PM on the
same day, he conducted the postmortem of the deceased Dinesh
Kumar Dinkar and found the following:
External Examination:- Obese built, Hair
black, eye closed, mouth closed.
Rigormortis was present in all four limbs.
Blood discharge was present on both
nostrils, forehead and left side of occipital
area of head.
Entry wound- There was a round 1cm x 1cm
size wound with inverted margin with
blacking and charring in left side of
occipital area of head. There was multiple
small burn wound of bullet gun powder was
present over left side of neck and cheek.
Exit wound:- There was a stellate shaped
1.5" x 1" size wound with averted margin
with fractured bone 1" left of centre of
forehead.
Degloving injury of skin (slippage of
epidermis over dermis) of size 4" x 3" over
right forearm and 3" x 2" over right arm
was present. (produced due to handling of
body)
Patna High Court CR. APP (DB) No.688 of 2024 dt.10-02-2025
Internal Examination:- On opening of skull-
Brain matter was severely damaged.
Associated fractures in occipital and frontal
bone.
Opening of chest- Lung-congested. Heart-
Right chamber filled with blood and left
chamber empty.
On opening of abdomen-Stomach and small
Intestine contains partially digested food.
Liver, Spleen, Kidney-All NAD.
Time elapsed since death- within 24 hours.
Cause of death- Injury to vital organ
"Brain" caused by firearm injury.
After postmortem examination dead body
with belongings was handed over to
concerned chowkidar and inquest crossed
and counter signed by me and attached with
this P.M. report.
15.i. In his cross-examination, he stated that he
did not write the names of any family member of the deceased
who identified the dead body.
16. PW-5 Ramiqbal Paswan who was the First
Investigating officer in the present case stated in his
examination-in-chief that he recorded the fardbeyan of Dezi
Kumari and lodged the F.I.R. which is marked as Exhibit P-
2/P/W-5. He stated that the place of occurrence was located near
a canal near the jungle east of the village Devna on the paved
road going towards Bangaon from Meghdaghara Ghat to the
north. The body of the deceased was found near the paved road
in a Scorpio vehicle bearing registration number BR-11-PB-
Patna High Court CR. APP (DB) No.688 of 2024 dt.10-02-2025
1388. From the place of occurrence he went to Santnagar where
he conducted investigation and the statement of the informant
was taken again. He stated that he recorded the statement of the
mother of the informant, Asha Devi also. Following this, raids
were conducted on the named accused and thereafter the
postmortem report was prepared.
16.i. He stated that he could not find the owner
of the Scorpio vehicle. He further stated that he sent the mobile
numbers of the deceased and the informant to the Technical In-
charge branch for getting the CDR/SDR reports. After this, he
was transferred from Saharsa to Supaul and he handed over the
investigation to PW-12 Jayram Sharma.
16.ii. In his cross-examination he stated that the
dead body was identified by Respondent No. 5 Dezi Kumari. In
Para-5 of his cross-examination he stated that Inquest report and
the Seizure list did not have the P.S. Case No. mentioned on it.
17. PW-6 Saroj Kumar was the third
Investigating Officer in the present case and stated that on
20.07.2020 he was posted as S.H.O at Bangaon P.S. and took
over the investigation of Bangaon P.S. Case No. 43 of 2020. He
received the CDR report from the Superintendent of Police and
recorded the same in the case diary. He stated that based on
Patna High Court CR. APP (DB) No.688 of 2024 dt.10-02-2025
analysis of the CDR, it was found that maximum number of
calls were made between the deceased and Respondent No. 4
Sanjeev Kumar on the date of occurrence. Following this
Respondent No. 4 was arrested for questioning. On the basis of
the confessional statement of Respondent No. 4 Gajendra Yadav
was arrested. Both the accused admitted their involvement in the
occurrence in their confessional statements.
17.i. On the basis of the confessional statement
of Gajendra Yadav, Amarendra Kumar Singh @ Panna Singh
and Roshan Kumar were arrested, who admitted in their
confessional statement that they had committed the murder of
the deceased for money. They also admitted that they had
thrown the firearm used in the incident in the bushes near the
place of occurrence. Based on this PW- 6 took the two arrested
accused Panna Singh and Roshan Kumar to the place of
occurrence and conducted the search of the place of occurrence.
A country-made pistol covered with mud was recovered from
the bushes near the place of occurrence, in which a bullet was
loaded, which had a bump on its bottom. After the recovery, the
senior police officer was informed about it and the recovered
items were seized after preparing a formal seizure list.
17.ii. As per the instructions of the senior officer,
Patna High Court CR. APP (DB) No.688 of 2024 dt.10-02-2025
in the light of the recovered firearm, a separate F.I.R was
registered against Amarendra Kumar Singh @ Panna Singh and
Roshan Kumar under Bangaon P.S. Case No. 52 of 2020, dated
03.08.2020 under Section 25 (1-B) of Arms Act. The criminal
history of the accused Amarendra Kumar and Roshan Kumar
was recorded in the case diary. In Para-5 of his examination-in-
chief, he stated that on the basis of statements of witnesses,
observation notes, report- 2 and investigation of the case,
charge-sheet number 92 of 2020 dated 25.10.2020 was
submitted against the non-FIR accused Gajendra Yadav, Sanjeev
Kumar, Roshan Kumar, Amarendra Kumar @ Panna Singh and
Dezi Kumari under Sections 302, 201 and 120B/34 of the IPC
and Section 27 of the Arms Act. The earlier investigation was
closed by submitting final report number- 105 of 2020 dated
18.12.2020, showing that no case was made against the FIR
accused persons namely, Sunita Devi, Roshan Yadav, Anil
Yadav. In Para- 6, the PW-6 has identified accused Amarendra
Singh @ Panna Singh, Sanjeev Yadav and Gajendra Yadav. He
has not identified Dezi Kumari.
17.iii. In Para-7 of the cross-examination, PW-6
stated that he did not have the details of the conversation that
took place between the deceased and Respondent No. 4, nor was
Patna High Court CR. APP (DB) No.688 of 2024 dt.10-02-2025
it recorded in the diary. In Para-8 he stated that he was not made
aware of the fact that the deceased Dinesh Kumar Dinkar had
lodged a case against his younger brother Kundan Yadav in
Sirbazar (Baijnathpur OP) police station case number 379 of
2015, under Sections 341, 323, 324, 354A, 379, 448, 504 and
506 of the IPC. In Para-9, he stated that he was not not aware
that Sunita Devi had also filed a case against the deceased
Dinesh Kumar Dinkar and Respondent No. 5 Dezi Kumari in
Mahila Thana vide case number-41 of 2014, dated 15.03.2014,
under Sections 498A, 494, 323 and 379/34 of the IPC, whose
GR number is- 3262 of 2014. In Para-10, he stated that Sunita
Devi's daughter informed that Sunita Devi had filed a
maintenance case against the deceased Dinesh Kumar Dinkar.
He further stated that they did not conduct any investigation in
this regard. In Para-11, he stated that no criminal antecedents of
accused Dezi Kumari were found. In Para-14 of his cross-
examination he stated that he did not inspect the place of
occurrence during the investigation.
17.iv. He further stated that he recorded Soni
Kumari's statement but she did not mention anything about the
accused named in the charge-sheet. He also stated that he did
not verify the voice of the accused as to whether it was them
Patna High Court CR. APP (DB) No.688 of 2024 dt.10-02-2025
who talked to the deceased on the date of occurrence. When the
accused were arrested, their voice was not tested. In Para-16, he
stated that no criminal antecedents of Gajendra Yadav and
Sanjeev Kumar were found.
18. PW-7 is the Technical branch in-charge
Manglesh Kumar Madhukar. He stated in his examination-in-
chief that on 25.10.2020, he was posted as technical branch in-
charge, Superintendent of Police Office, Saharsa. The
CDR/SDR, location and other technical support related
documents of the mobile numbers related to this case were taken
out by him from the government computer which was a
Windows 10 computer of Dell company which had 8 GB RAM
and it was used under his supervision. He stated that the
certificated copy related to it was issued by him and also typed
and signed by him. The certificated copy was marked as
Exhibit-P-5/PW-7 by the prosecution.
18.i. In Para-2 of his cross-examination he stated
that the CDR/SDR and the location of the mobile numbers were
not mentioned in the certificated copy. He further stated that the
Investigating Officer did not record his statement.
19. PW-8 Manoj Kumar is cousin brother of the
deceased. He stated in his examination-in-chief that the
Patna High Court CR. APP (DB) No.688 of 2024 dt.10-02-2025
occurrence took place on 03.07.2020 and his brother was
murdered under a conspiracy between Dezi Kumari and
Gajendra Yadav. He stated that the murder was committed over
property dispute. The deceased, Dinesh Kumar Dinkar had two
wives and his second wife got him killed. In Para-2, PW-8
stated that he only identified two of the accused, namely, Dezi
Kumari and Gajendra Yadav and did not recognize the other two
accused.
19.i. In Para-3 of his cross-examination he stated
that he was not an eye-witness to the occurrence. In Para-5 he
stated that he did not know whether Sunita Devi had filed
Mahila Thana Case No. 41 of 2014 against her husband Dinesh
Kumar Dinkar and Dezy Kumari or not. He knew that Sunita
Devi had filed a maintenance case 169 of 2014 against the
deceased but did not know that it was dismissed on 05.02.2016.
After that, she filed another maintenance case 29 of 2016. In
Para-6 he stated that when the deceased threw Sunita Devi out
of his house, she went to her maternal home in Laxmipur and
was living there with her daughter. He was not aware that she
was earning her livelihood by cooking khichdi in a school there.
19.ii. In Para-7 he stated that the deceased had
sold land to Gajendra Yadav while he was alive but he was not
Patna High Court CR. APP (DB) No.688 of 2024 dt.10-02-2025
aware whether Gajendra Yadav used to visit the deceased's
place to give him money in the capacity of buyer. He further
stated that he did not know whether Gajendra Yadav used to go
there for the purpose of giving money or for some other
purpose. He stated that there were ten people's houses between
his house and the deceased Dinesh's house. In Para-12 he stated
that he got the information of Dinesh Kumar's death from
Facebook. He saw his dead body and stated that he signed the
inquest report but then stated that he did not sign the inquest
report.
19.iii. In Para-16 he stated that he did not inform
the police about the death of the deceased after getting the
information about the same. He also stated in Para-17 that the
police did not make him sign any document at the place of
occurrence.
20. PW-9 Bhudan Kumar @ Bhudan Tanti and
PW-10 Ajay Kumar are independent witnesses in the present
case who signed the seizure list prepared by the Investigating
officer on 04.07.2020.
20.i. In their cross-examination they both stated
that the police made both of them put their signature on a blank
page each and no recovery was made in presence of them. They
Patna High Court CR. APP (DB) No.688 of 2024 dt.10-02-2025
further stated that the police did not take their statement.
21. PW-11, Asha Devi is the mother of the
informant who is respondent no. 5, Dezi Kumari. She stated that
she was present in the police station when the informant gave
her fardbeyan. In Para-2 she stated that she did not recognize
any accused other than her daughter.
22. PW-12 Jayaram Sharma stated that he was
posted as S.I. at Bangaon P.S. on 13.07.2020 and took over the
investigation of the present case from Ramiqbal Paswan
provisionally. On 20.07.2020 he handed over the investigation
to PW-6 S.I. Saroj Kumar. In Para-4 of his examination-in-chief
he stated that he recognized the accused by their face but did not
know their names.
22.i. In Para-5 of his cross-examination he stated
that he did not conduct any investigation. He further stated that
any information that what he said was hearsay. He stated that
both the postmortem report and the seizure list was not prepared
in front of him. In Para-6 of his cross-examination he stated that
he did not question any witnesses and neither apprehend any of
the accused.
23. PW-13 Soni Kumari, who is the daughter of
the appellant and the deceased. She stated in her examination-
Patna High Court CR. APP (DB) No.688 of 2024 dt.10-02-2025
in-chief that the incident took place on 03.07.2020. Her father
had married twice and he and her step-mother Dezi Kumari
together assaulted her mother, the appellant and drove her away.
After that her mother took her to her maternal village Laxmipur.
After she stated that her step-mother got some land transferred
to her name by swindling her deceased father and also got some
land transferred in the name of Respondent No. 3 Gajendra
Yadav. After that when her father was buying a Scorpio, Dezi
Kumari got that purchased in her name too.
23.i. She stated that Dezi Kumari started living
in a rented house in Saharsa and was in an illicit relationship
with the room owner Gajendra Yadav. When the deceased got to
know about his wife's illicit relationship there was a rift
between them. The deceased asked Dezi Kumari to vacate the
room where she was staying in Saharsa but she refused to do so.
Thereafter the deceased physically assaulted Dezi Kumari. PW-
13 further stated that her grandmother had heard Gajendra
Yadav and Dezi Kumari talking where they conspired to murder
the deceased. She stated that Gajendra Yadav talked to some
criminals for murdering her father.
23.ii. In Para-6 of her cross-examination she
stated that she had filed a title suit bearing case no. 273 of 2022
Patna High Court CR. APP (DB) No.688 of 2024 dt.10-02-2025
against her grand-mother, paternal uncle, Dezy Kumari and a
few others got her grandmother to transfer some land in her
name. In Para-7 she stated that she had never heard any
conversation between Gajendra Yadav and Dezi Kumari. In
Para-9 she stated that her father had said that he was purchasing
the Scorpio vehicle in his own name. In Para-15 she stated that
she got the information of her father's death on 04.07.2020 by a
message on a Whatsapp group but she did not inform anyone of
her father's murder.
23.iii. In Para-17 of her cross-examination she
stated that on 04.07.2020 she was not aware as to how her father
had been murdered and after 15-16 days when she got to know,
she filed a complaint in the police station but no FIR was lodged
on the complaint and she was also not given a copy of the
complaint. In Para-18 she stated that she did not sign any
documents. She stated that she was aware of the illicit
relationship between Gajendra Yadav and Dezi Kumari ateast a
year before her father's death but out of fear that her father
might be murdered she did not tell anyone about it. In Para-20
she stated that she was not an eye-witness to the alleged
occurrence and that she gave her statement based on hearsay.
24. Out of the 13 witnesses presented by the
Patna High Court CR. APP (DB) No.688 of 2024 dt.10-02-2025
prosecution, it appears that PW-1 was declared hostile by the
prosecution and hence it is clear that he did not support the
occurrence. None of the prosecution witnesses have seen the
alleged occurrence, thus, there is no direct evidence on record
which points out the guilt of the Respondents. PW-2 is the
mother of the deceased who has alleged that Gajendra Yadav
and Dezi Kumari murdered her son but she is not an eye-witness
to the said occurrence. The allegation that Dezi Kumari
forcefully made the deceased transfer his land in her name is
also not supported by PW-2's statement as she stated in Para-4
of her cross-examination that she never saw the documents
related to the land. PW-3 stated in Para-10 of his cross-
examination that he was not aware if his deceased brother was
involved in buying and selling of land in Ghamaria with
Gajendra Yadav but later stated that his deceased brother had
sold his land to Gajendra Yadav.
25. In Para-18 of his cross-examination he stated
that the police made him sign some papers but he was not aware
of the contents of the documents as he was illiterate. PW-4 who
is the Medical Officer stated in his medical report that the cause
of death was brain injury caused by a firearm. On the basis of
the confessional statements of the accused/respondents, the
Patna High Court CR. APP (DB) No.688 of 2024 dt.10-02-2025
police recovered a country made pistol from the place of
occurrence but no weapon was mentioned in the seizure list
prepared by the police and neither was the weapon produced
before the trial Court. PW-9 and 10 are independent witnesses
of seizure list and no report of ballistic report regarding said
firearm used in assault of deceased is present and also stated in
Para-3 of their cross-examination that no recovery was made in
presence of them and that the police made them sign blank
paper.
26. The certificated documents of the CDR/SDR
reports submitted by PW-7 do not mention the details of the
mobile numbers. Further, although the CDR report showed that
maximum calls were made between the deceased and
Respondent No. 4 Sanjeev Kumar, there is no evidence on
record which shows the details of the conversation or that it was
the respondent himself who had talked to the deceased. PW-6,
Saroj Kumar who was one of the Investigating Officers in the
present case stated in Para-15 of his cross-examination that he
did not verify the voice of the accused/respondents as to
whether it was them who talked to the deceased on the date of
occurrence.
27. Further when the accused were arrested, their
Patna High Court CR. APP (DB) No.688 of 2024 dt.10-02-2025
voice was not sent for verification. PW-13 daughter of the
deceased is the only witness who has stated that there was an
illicit relationship between Gajendra Yadav and Dezi Kumari.
As per her statement she got to know about their relationship
from her paternal grandmother PW-2 but the latter did not
mention anything about it in her statement before the Court.
There are material inconsistencies between PW-13's statements
which she made before the police and her statements before the
Court.
28. Although it has been established that the
deceased was murdered however, none of the evidence
presented by the prosecution establishes that the
accused/respondents were guilty of commission of the offence.
There is no eye-witness in the present case and thus in the
absence of any direct evidence, the prosecution could establish
the guilt of the accused/respondents by way of circumstantial
evidence provided that the circumstances brought forward by
the prosecution are consistent with each other and the links are
connected to each other and are complete in the eyes of the
Court to prove the accused guilty beyond all reasonable doubt.
However, in the instant case no such circumstantial evidence
has come on record which shows that the said murder was
Patna High Court CR. APP (DB) No.688 of 2024 dt.10-02-2025
committed by the accused/respondents because in the case of
circumstantial evidence, the chain of evidence should be
complete in all respects so as to prove the guilt of the accused.
Although circumstantial evidence is not defined in the Cr.P.C,
the Hon'ble Supreme Court has laid down the Panscheel with
respect to conviction on the basis of circumstantial evidence. In
the landmark case of Sharad Birdhichand Sarda v. State of
Maharashtra, (1984) 4 SCC 116, the Apex Court held as
follows:
153. A close analysis of this decision would
show that the following conditions must be
fulfilled before a case against an accused
can be said to be fully established:
(1) the circumstances from which the
conclusion of guilt is to be drawn should be
fully established.
It may be noted here that this Court
indicated that the circumstances concerned
"must or should" and not "may be"
established. There is not only a
grammatical but a legal distinction between
"may be proved" and "must be or should
be proved" as was held by this Court in
Shivaji Sahabrao Bobade v. State of
Maharashtra19 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
Patna High Court CR. APP (DB) No.688 of 2024 dt.10-02-2025
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.
29. Thus, on the basis of the evidence based on
record and the ratio laid down by the Hon'ble Supreme Court
in various cases on circumstantial evidence, it is held that the
charges against the accused/respondent is not proved beyond
all reasonable doubt and the necessary elements mentioned in
the charged sections are lacking to hold them guilty under the
charged sections. In the totality of the circumstances which
are appearing from the evidences on the record, we are of the
considered opinion that the learned trial Court has not
committed any error in appreciation of the evidences.
19. (1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783
Patna High Court CR. APP (DB) No.688 of 2024 dt.10-02-2025
30. It is a case of acquittal in which the
presumption of innocence of the accused is, in fact, affirmed by
the learned trial Court. There is no reason for this Court to take
a view that the accused/Respondent No. 2 is guilty of the charge
in question. In fact, this Court is of the opinion that the
prosecution has failed before the learned trial Court to prove the
charges leveled against the respondent as opined by the learned
trial Court.
31. We find no reason to interfere with the
impugned judgment of the learned trial Court. Accordingly, this
appeal is dismissed.
(Rajeev Ranjan Prasad, J)
(Ramesh Chand Malviya, J)
Brajesh Kumar/-
AFR/NAFR
CAV DATE N/A
Uploading Date 15.02.2025
Transmission Date 15.02.2025
