Patna High Court
Manoj Kumar Mahto And Anr vs State Of Bihar on 17 March, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.100 of 2006
======================================================
1. Manoj Kumar Mahto, Son of Kameshwar Mahto @ Binda Mahto, resident
of Village- Bhdudra, P.S. Town, District- Madhubani.
2. Shyam Sahni, Son of Rameshwar Sahu, Resident of Village-Nehra, Police
Station- Manigachhi, District- Darbhanga.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
Ms. Vaishnavi Singh, Advocate
Mr. Ritwik Thakur, Advocate
Mr. Rakesh Kumar Sinha, Advocate
Mr. Sanjay Singh, Sr. Advocate
For the State : Mr. S. A. Ahmad, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAMESH CHAND MALVIYA
ORAL JUDGMENT
Date: 17-03-2025
Heard Mr Ajay Kumar Thakur, learned counsel
for the appellants assisted by Ms. Vaishnavi Singh, Mr. Ritwik
Thakur and Mr. Rakesh Kumar Sinha and learned APP for the
State.
2. The present appeal is directed against the
Judgment of conviction dated 27.01.2006 and order of sentence
dated 28.01.2006 in Sessions Trial No. 10 of 2000 passed by the
learned Additional Sessions Judge, Fast Track Court No.-1,
Darbhanga has convicted the appellants under Section 395 of
the Indian Penal Code (hereinafter referred as 'IPC') and
sentenced them to undergo 10 years rigorous imprisonment.
3. The brief facts leading to the filing of the
Patna High Court CR. APP (SJ) No.100 of 2006 dt.17-03-2025
2/22
present appeal on the basis of the fardbeyan of Lalan Kumar
Choudhary, PW-4 in the night of 21/22.01.1998 stating therein
that on the alleged night of occurrence at around 11:20 PM
when the informant came out of his house in north for urination.
Suddenly one person came and pointed out revolver on him and
directed him to come inside the house. Thereafter, 4-5 persons
also followed him and came inside the house, again 3-4 persons
came thereafter. Out of them four were armed with revolver and
five persons were armed with dagger. Thereafter the persons
entered in the room situated in the north side of the house and
asked informant's wife PW-11 to handover the keys of Godrej.
Then those persons unlocked the Godrej and took out teeka,
nathiya, mangal sutra, jhumka, angoothi, tops, silver Payal and
silver ring worth Rs. 35,000/- and cash of Rs. 1,500/- along with
one Yasika camera worth Rs. 2,000/- and sari worth Rs.
10,000/-. Then those persons entered in the third room and took
out ornaments and cash of Rs. 20,000/- from the box and in the
adjoining southern room in which the informant's sister and
younger brother kept the articles. Those persons took away gold
necklace set, ear-ring, mangal sutra, ring, silver darkas and
Payal worth Rs. 25,000/- and clothes of the informant's brother.
The informant was again persuaded on the point of revolver to
Patna High Court CR. APP (SJ) No.100 of 2006 dt.17-03-2025
3/22
come in adjoining room of informant's uncle and those persons
demanded all the articles but they did not find any article there.
Then these persons after breaking the box of the informant's
cousin sister, they took away three than of clothes each of ten
meters cotton clothes worth Rs. 1,500/- and thereafter they
reiterated from the north Darwaja of the informant's house.
Then the house inmates raised alarm and villagers Barun Jha,
Anand Jha, Vijay Mishra and Ashok Kumar came there and
thereafter informant through telephone informed to the police
station.
4. On the basis of the fardbeyan, Darbhanga
Sadar P.S. Case No. 08 of 1998 dated 22.01.1998 was registered
under Section 395 of the IPC. Thereafter, on the very next day
i.e., 22.01.1998, two miscreants were apprehended in another
police station and on getting information the Investigating
Officer of the present case interrogated them who were Shyam
Kumar Sahani and Manoj Kumar Mahto, who confessed their
guilt and their confession was recorded and marked as exhibit-6
and 6/a. On the basis of the confessional statement, house of
third co-accused Arjun Sah was raided and several ornaments
were recovered.
5. On the basis of this investigation, the police
Patna High Court CR. APP (SJ) No.100 of 2006 dt.17-03-2025
4/22
submitted chargesheet against three accused persons under
Sections 395 and 412 of the IPC. Thereafter, the learned CJM
took cognizance under the aforesaid sections and committed the
case to the Court of Sessions vide order dated 10.12.1999.
6. The prosecution examined altogether 13
witnesses to substantiate the charges levelled against the
appellants, who are namely PW-1 Salam Mustafa, PW-2 Madan
Kumar Gara, PW-3 Ashok Kumar Yadav, PW-4 Lalan Kumar
Chaudhary, PW-5 Sitaram Yadav, PW-6 Nityanand Choudhary,
PW-7 Vijaykant Mishra, PW-8 Varun Kumar Jha, PW-9 Ganga
Devi, PW-10 Saraswati Devi, PW-11 Rinku Choudhary, PW-12
Sugreev Singh and PW-13 Ambika Prasad Singh.
7. PW-1 Salam Mustafa, who has stated interalia
that on 22.01.1998 at about 3.00 PM the police of Laheriasarai
and Sadar raided the shop of Bahurani Jewellers and seized
ornaments of silver, gold. He signed on the seizure list and he
identified seizure list as Ext.1 and his signature as Ext.1/1. This
witness has not identified the appellants Manoj Kumar Mahto
and Shyam Sahni in the Court.
7.i. In cross examination he has stated that in his
presence the police have not seized any article. Police came at
his shop and took his signature. The same was not read over to
Patna High Court CR. APP (SJ) No.100 of 2006 dt.17-03-2025
5/22
him. He further stated that he has not gone to Bahurani
Jewellers at the time of raid, nothing was shown to him.
8. PW-2 Madan Kumar Gara was declared
hostile.
9. PW-3 Ashok Kumar Yadav stated that on hulla
he went to the house of Lalan Choudhary and by that time
accused persons had fled away after committing dacoity. This
witness has also not identified any of the two appellants in
Court.
10. PW-4 Lalan Kumar Choudhary, the
informant himself. He in his examination-in-chief has stated that
on 22.01.1998 at about 11.30 he came out of the house for
urinating. A person came pointed revolver on his temporal
region and asked him to come into the house and the said
accused came into the house along with him. 4-5 accused
persons also entered the house. They took away key of Godrej
and from the Godrej ornaments, sari worth Rs.35000/- and
Rs.1500/- was taken by them and he has stated that accused
persons also took away other articles. In the cross-examination
PW-4 by seeing the accused persons, he stated that these two
accused were not involved in the occurrence.
11. PW-5 Sitaram Yadav, the Block Development
Patna High Court CR. APP (SJ) No.100 of 2006 dt.17-03-2025
6/22
Officer has conducted the Test Identification Parade of the
articles.
12. PW-6 Nityanand Choudhary, uncle of the
informant, who has stated interalia that about five years ago at
about 11.00 in the night he was sleeping. Lalan Choudhary
(informant) awoke him and he saw 4-5 persons have surrounded
Lalan Choudhary and he too was surrounded and the accused
took away the ear-ring of his wife and other articles. He further
stated that he failed to identify any of the accused. In cross
examination he has stated that he has not seen the face of any of
the suspects.
13. PW-7 Vijaykant Mishra, who has stated
interalia that he went to the house of Lalan Choudhary after
dacoity and he has not identified any of the dacoits.
14. PW-8 Varun Kumar Jha has been declared
hostile by the prosecution.
15. PW-9 Ganga Devi wife of Vidyanand
Choudhary and she stated that the informant is his son and the
occurrence took place three years ago. She was not present at
the time of dacoity but she has stated that she identified the
articles in the test identification parade on 01.02.1998 and she
identified her signature which was marked as Ext. 1/f.
Patna High Court CR. APP (SJ) No.100 of 2006 dt.17-03-2025
7/22
15.i. In cross examination she stated that 15 to 20
days after the occurrence, she has gone for identification and
she cannot disclose the name of the articles which she identified
and there was no sign on those articles which she identified. She
further stated that she cannot disclose the size and design of the
ornaments. How many jewelleries were kept in the Test
Identification Parade she could not say. All jewelleries were of
different kinds.
16. PW-10 Saraswati Devi wife of PW-6 stated
that dacoits have come to the house and committed dacoity and
took away articles but she failed to identify the accused persons.
17. PW-11 Rinku Choudhary, wife of Sri Lalan
Kumar Choudhary. She also stated that dacoity was committed
in her house and four persons had come armed with pistol and
demanded key of Godrej and from the key they opened the
Godrej and took away articles. She failed to identify any of the
dacoits but in the test identification parade of articles she
identified the articles and she also identified the signature on
TIP of articles which was marked as Ext.1/g. In cross
examination she stated that she cannot say how many articles
were kept on the table. She further stated that there was no mark
in any of the jewelleries. She further stated that on the blank
Patna High Court CR. APP (SJ) No.100 of 2006 dt.17-03-2025
8/22
paper the signature of all the persons were taken.
18. PW-12 Sugreev Singh Police Sub-Inspector
and he stated that the confessional statement of Manoj Kumar
Mahto and Shyam Sahni was written by Ambika Prasad Singh
which were marked as Ext.6 and 6/A. He further stated that he
took the charge from Ambika Prasad Singh on 04.05.1998 and
on 13.08.1998 he submitted chargesheet.
19. PW-13 Ambika Prasad Singh, Retired Sub
Inspector. He has stated that on telephonic information he was
informed that dacoity was committed in the house of Lalan
Kumar Choudhary on 22.01.1998 at about 01.00 in the night.
After instituting Station Diary Entry 306 dated 22.01.1998 he
along-with other police personnel went to the place of
occurrence and recorded the fardbeyan of Lalan Kumar
Choudhary which he identified as Ext.2. On the said fardbeyan,
F.I.R. was drawn up and he inspected the place of occurrence
and recorded the statement of witnesses. He further stated that at
about 12.00 in the day time he went to police station where he
learnt that two criminals were arrested at Laheriasarai police
station. He came to Laheriasarai police station where Manoj
Kumar Mahto, Shyam Sahni gave their confessional statement.
He further stated that on their confessional statement he went to
Patna High Court CR. APP (SJ) No.100 of 2006 dt.17-03-2025
9/22
Bahurani jewellers along with other two accused and Bahurani
jewellers were searched and the alleged articles were seized on
which Madan Kumar Gara and Gulam Mustafa put their
signature. On 23.01.1998 he produced the accused persons in
Court. On 01.02.1998 the seized articles were put on T.I.P.
before the B.D.O. Sadar, where Ganga Devi, Rinku Kumari,
Sarita Devi identified the articles.
19.i. In cross examination he stated that at about
1'0 clock in night Lalan Kumar Choudhary has informed him
about dacoity and on the basis he went to the place of
occurrence. In para-8 he stated that through telephone he learnt
that at Laheriasarai police station two accused persons were
apprehended with revolver and he has no informed that dacoits
were arrested.
20. Learned counsel for the appellants submits
that the impugned judgment of conviction and order of sentence
are not sustainable in the eye of law or on facts. Learned trial
Court has not applied its judicial mind and erroneously passed
the judgment of conviction and order of sentence. From perusal
of the evidences adduced on behalf of the prosecution it is
crystal clear that none of the prosecution witnesses have
identified the appellants in the Court including the informant
Patna High Court CR. APP (SJ) No.100 of 2006 dt.17-03-2025
10/22
PW-4, his uncle Nityanand PW-6 and his mother Ganga Devi
(PW-9) and his aunt Saraswati Devi PW-10. He further
submitted that informant PW-4 has specifically stated in the
Court that both accused (Manoj Kumar Mahto and Shyam
Sahni) were not present in the occurrence vide para-1 of his
deposition. He further submitted that it is well settled law that
confession of accused made before the police is not admissible
and no incriminating material has been recovered from
possession of the appellants. The appellants were not charged
under Section 412 of the IPC. Even a TIP conducted in the
presence of a police officer is inadmissible in light of Section
162 of the Code of Criminal Procedure, 1973 (Chunthuram v.
State of Chhattisgarh (2020) 10 SCC 733 and Ramkishan
Mithanlal Sharma v. State of Bombay (1955) 1 SCR 903).
20.i. The learned counsel for the appellants
further contended that confession made before the police is not
admissible and Section 27 of the Evidence Act provides that
when any fact is deposed to as discovery in consequence of
information received from the person, accused must be in
custody of police officer, so much of information were missing
to confession or not, as relates distinctly to the fact discovered,
may be proved and thus on basing as per said confession does
Patna High Court CR. APP (SJ) No.100 of 2006 dt.17-03-2025
11/22
not only be said that the articles are of Bahurani jewellery shop
and except that nothing will be admissible. He further submitted
that from the statement of witnesses it will be evident that there
was no identification mark in any of the articles which they
allegedly identified and the seizure list witnesses PW-1 has
stated in cross-examination that his signature was obtained at
this shop by the police and he has not gone to Bahurani
Jewellery. He further submitted that failure on the part of the
police to prepare panchanama at the place of occurrence
demolishes the entire case of the prosecution of recovery of
jewelleries of the informant based on the disclosure made by the
appellants in their confessional statement. He further submitted
that the confessional statement of the appellants was not
recorded in the presence of any Magistrate or any independent
witness, and is therefore not admissible in evidence. No
presumption can be drawn against the appellants on the basis of
the so-called confession particularly once the said confession
was not made in presence of any independent witness. He has
submitted that the chain of circumstances cannot be said to have
been proved to reach a definite conclusion that the appellants
were guilty of the offences of which they were charged with.
None of the articles have been produced in Court as material
Patna High Court CR. APP (SJ) No.100 of 2006 dt.17-03-2025
12/22
exhibits in the present case. From the aforesaid facts it is clear
that absolutely there is no legal material to connect the
appellants with the crime in question. The Learned trial Court
has failed to appreciate the evidence it's right perspective and
impugned judgment of conviction is bad in law as well as on
fact and such to set aside.
20.ii. At this stage, learned counsel has placed
reliance upon the decision rendered by Hon'ble Supreme Court
in the following cases: -
(a) Subramanya Vs. State of Karnataka,
reported in 2022 SCC OnLine SC 1400.
(b) Ramanand @ Nandlal Bharti Vs. State
of Uttar Pradesh, reported in 2022 SCC
OnLine SC 1396.
21. However, learned APP for the State defends
the impugned judgment of conviction and the order of sentence
submitting that there is no illegality or infirmity in the impugned
judgment and order of sentence, because prosecution has proved
its case against the appellants beyond all reasonable doubts. In
view of the aforesaid statements and the evidence on record,
learned trial Court has rightly convicted the appellants and the
present appeal should not be entertained.
Patna High Court CR. APP (SJ) No.100 of 2006 dt.17-03-2025
13/22
22. At this stage, I would like to appreciate the
relevant extract of entire evidence led by the prosecution and
defence before the Trial Court and have thoroughly perused the
materials on record and aforesaid judgments referred by the
learned counsel for the appellants as well as given thoughtful
consideration to the submissions advanced by both the parties.
23. Having deeply studied and scrutinized the
facts and the material available on record of the present case and
aforesaid decisions rendered by the Hon'ble Supreme Court, it
is evident to note here that when the Investigating Officer steps
into the witness box for proving such disclosure statement, he
would be required to narrate what the accused stated to him. The
Investigating Officer essentially testifies about the conversation
held between himself and the accused which has been taken
down into writing leading to the discovery of the incriminating
facts. In the present case, from the evidence of the prosecution
witnesses including the Investigating Officer, it is clear that the
Investigating Officer gave no description at all of the
conversation which had transpired between himself and the
accused which was recorded in the disclosure statements. Thus,
I am of the view that this type of disclosure statements cannot
be read in evidence and the recovery made in furtherance
Patna High Court CR. APP (SJ) No.100 of 2006 dt.17-03-2025
14/22
thereof are non est in the eyes of law. In view of the judgment
rendered by Hon'ble Supreme Court in the case of Sujit Biswas
reported in AIR 2013 SC 3817, it is well settled that the
circumstances not put to the accused while recording statement
under Section-313 of the Code cannot be used against the
accused. Para-12 of the aforesaid judgment reads as under:
"12. It is a settled legal proposition that in
a criminal trial, the purpose of examining
the accused person under Section 313 Code
of Criminal Procedure, is to meet the
requirement of the principles of natural
justice, i.e. Audi alteram partem. This
means that the accused may be asked to
furnish some explanation as regards the
incriminating circumstances associated
with him, and the court must take note of
such explanation. In a case of
circumstantial evidence, the same is
essential to decide whether or not the chain
of circumstances is complete. No matter
how weak the evidence of the prosecution
may be, it is the duty of the court to
examine the accused, and to seek his
explanation as regards the incriminating
material that has surfaced against him. The
circumstances which are not put to the
accused in his examination Under Section
313 Code of Criminal Procedure, cannot
used against him and must be excluded
from consideration. The said statement
cannot be treated as evidence within the
meaning of Section 3 of the Evidence Act,
as the accused cannot be cross-examined
with reference to such statement."
Patna High Court CR. APP (SJ) No.100 of 2006 dt.17-03-2025
15/22
24. If we read the entire oral evidence of the
Investigating Officer then it is clear that the Investigating
Officer did not followed the procedure laid down by the Apex
Court which is deficient in all the aforesaid relevant aspects of
the matter which makes the evidence of test identification
parade suspectful and in that view of the matter it is not safe to
act upon it. Informant and other prosecution witnesses have
stated in their deposition that they have not identified the
accused/appellants present in the Court. Apart from the
confessional statement of appellants, I find no other evidence
put forth by the prosecution to prove the guilt of the
accused/appellants for offences punishable under Section 395 of
the Indian Penal Code. On the point of recovery, it would be
relevant that the charge has not be framed under Section 412 of
the IPC against the appellants, so the appellants cannot be
convicted under the same. I would like to refer the decision
rendered by the Hon'ble Supreme Court in the case of
Subramanya (supra), has held in Para 76 to 79 as under: -
"76. Keeping in mind the aforesaid
evidence, we proceed to consider whether
the prosecution has been able to prove and
establish the discoveries in accordance with
law. Section 27 of the Evidence Act reads
thus:
"27. How much of information received
Patna High Court CR. APP (SJ) No.100 of 2006 dt.17-03-2025
16/22
from accused may be proved: -
Provided that, when any fact is deposed to
as discovered in consequence of
information, received from a person
accused of any offence, in the custody of a
police officer, so much of such information,
whether it amounts to a confession or not,
as relates distinctly to the fact thereby
discovered, may be proved."
77. The first and the basic infirmity in the
evidence of all the aforesaid prosecution
witnesses is that none of them have deposed
the exact statement said to have been made
by the appellant herein which ultimately led
to the discovery of a fact relevant under
Section 27 of the Evidence Act.
78. If, it is say of the investigating officer
that the accused appellant while in custody
on his own free will and volition made a
statement that he would lead to the place
where he had hidden the weapon of offence,
the site of burial of the dead body, clothes
etc., then the first thing that the
investigating officer should have done was
to call for two independent witnesses at the
police station itself. Once the two
independent witnesses would arrive at the
police station thereafter in their presence
the accused should be asked to make an
appropriate statement as he may desire in
regard to pointing out the place where he is
said to have hidden the weapon of offence
etc. When the accused while in custody
makes such statement before the two
independent witnesses (panch-witnesses)
the exact statement or rather the exact
words uttered by the accused should be
incorporated in the first part of the
panchnama that the investigating officer
Patna High Court CR. APP (SJ) No.100 of 2006 dt.17-03-2025
17/22
may draw in accordance with law. This first
part of the panchnama for the purpose of
Section 27 of the Evidence Act is always
drawn at the police station in the presence
of the independent witnesses so as to lend
credence that a particular statement was
made by the accused expressing his
willingness on his own free will and volition
to point out the place where the weapon of
offence or any other article used in the
commission of the offence had been hidden.
Once the first part of the panchnama is
completed thereafter the police party along
with the accused and the two independent
witnesses (panch-witnesses) would proceed
to the particular place as he may be led by
the accused. If from that particular place
anything like the weapon of offence or
blood-stained clothes or any other article is
discovered then that part of the entire
process would form the second part of the
panchnama. This is how the law expects the
investigating officer to draw the discovery
panchnama as contemplated under Section
27 of the Evidence Act. If we read the entire
oral evidence of the investigating officer
then it is clear that the same is deficient in
all the aforesaid relevant aspects of the
matter.
79. In the aforesaid context, we may refer to
and rely upon the decision of this Court in
the case of Murli and Another v. State of
Rajasthan reported in (2009) 9 SCC 41,
held as under:
"34. The contents of the panchnama are not
the substantive evidence. The law is settled
on that issue. What is substantive evidence
is what has been stated by the panchas or
the person concerned in the witness box."
Patna High Court CR. APP (SJ) No.100 of 2006 dt.17-03-2025
18/22
(Emphasis supplied)"
25. In the case of Ramanand (supra), the Hon'ble
Supreme Court has held in Para 51 to 53 as under: -
"51. It is the case of the prosecution that on
24.01.2010
the accused appellant was
picked up by the investigating officer from
nearby a bus stand and was arrested in
connection with the alleged crime. After the
arrest of the accused appellant and while he
being in the custody at the police station, he
is said to have on his own free will and
volition made a statement that he would like
to point out the place where he had hidden
the weapon of offence (Banka) and his
blood-stained clothes after the commission
of the alleged crime. According to him,
after such statement was made by the
accused appellant, he along with his
subordinates set forth for the place as led
by the accused. There is something very
unusual, that we have noticed in the oral
evidence of the investigating officer.
According to him while the police party
along with the accused were on their way,
all of a sudden, the investigating officer
realized that he should have two
independent witnesses with him for the
purpose of drawing the panchnama of
discovery. In such circumstances, while on
the way the investigating officer picked up
PW-2, Chhatarpal Raidas and Pratap to act
as the panch witnesses. According to the
investigating officer the accused led them to
a coriander field and from a bush he took
out the weapon of offence (Banka) and the
blood-stained clothes. The weapon of
offence and the blood-stained clothes were
Patna High Court CR. APP (SJ) No.100 of 2006 dt.17-03-2025
collected in the presence of the two panch
witnesses and the panchnama Exht. 5 was
accordingly drawn. The weapon of offence
and the blood-stained clothes thereafter
were sent for the Serological Test to the
Forensic Science laboratory. We are of the
view that the Courts below committed a
serious error in relying upon this piece of
evidence of discovery of a fact, i.e., the
weapon & clothes at the instance of the
accused as one of the incriminating
circumstances in the chain of other
circumstances. We shall explain here below
why we are saying so.
52. Section 27 of the Evidence Act, 1872
reads thus:
"27. How much of information received
from accused may be proved: -
Provided that, when any fact is deposed to
as discovered in consequence of
information received from a person accused
of any offence, in the custody of a police
officer, so much of such information,
whether it amounts to a confession or not,
as relates distinctly to the fact thereby
discovered, may be proved."
53. If, it is say of the investigating officer
that the accused appellant while in custody
on his own free will and volition made a
statement that he would lead to the place
where he had hidden the weapon of offence
along with his blood stained clothes then
the first thing that the investigating officer
should have done was to call for two
independent witnesses at the police station
itself. Once the two independent witnesses
arrive at the police station thereafter in
their presence the accused should be asked
to make an appropriate statement as he may
Patna High Court CR. APP (SJ) No.100 of 2006 dt.17-03-2025
desire in regard to point in 53. If, it is say of
the investigating officer that the accused
appellant while in custody on his own free
will and volition made a statement that he
would lead to the place where he had
hidden the wg out the place where he is said
to have hidden the weapon of offence. When
the accused while in custody makes such
statement before the two independent
witnesses (panch witnesses) the exact
statement or rather the exact words uttered
by the accused should be incorporated in
the first part of the panchnama that the
investigating officer may draw in
accordance with law. This first part of the
panchnama for the purpose of Section 27 of
the Evidence Act is always drawn at the
police station in the presence of the
independent witnesses so as to lend
credence that a particular statement was
made by the accused expressing his
willingness on his own free will and volition
to point out the place where the weapon of
offence or any other article used in the
commission of the offence had been hidden.
Once the first part of the panchnama is
completed thereafter the police party along
with the accused and the two independent
witnesses (panch witnesses) would proceed
to the particular place as may be led by the
accused. If from that particular place
anything like the weapon of offence or
blood-stained clothes or any other article is
discovered then that part of the entire
process would form the second part of the
panchnama. This is how the law expects the
investigating officer to draw the discovery
panchnama as contemplated under Section
27 of the Evidence Act. If we read the entire
Patna High Court CR. APP (SJ) No.100 of 2006 dt.17-03-2025
oral evidence of the investigating officer
then it is clear that the same is deficient in
all the aforesaid relevant aspects of the
matter."
26. In similar situated case, Singhasan Sahni @
Sahdeo Sahni v. State of Bihar 2025 PLJR 844 this Court took
the view that-
"The unexplained delay in holding the test
identification parade with further non-
explanation or not putting the appellant on
test identification parade makes the
evidence of test identification parade
suspectful and in that view of the matter it
is not safe to act upon it.......... Apart from
the TIP, I find no other evidence put forth
by the prosecution to prove the guilt of the
accused for offences under Section 392 of
the Indian Penal Code. On the other hand,
defence has also established his case as the
accused person was not present at the place
of occurrence and he has shown his driving
license to the Investigating Officer while he
was on patrolling duty. Since the
prosecution has not been able to prove its
case and the defence has put forth stronger
evidence showing that he was not present at
the place of occurrence and at the time of
occurrence, the accused/appellant is hereby
given the benefit of doubt and the appeal is
allowed."
27. In view of the above discussion, I am of the
view that the confessional statement of the appellants are
inadmissible under Section 27 of the Evidence Act as the
prosecution has failed to complete the chain of circumstances by
Patna High Court CR. APP (SJ) No.100 of 2006 dt.17-03-2025
leading cogent evidence to prove the guilt against the appellants
and the prosecution put forth no other evidence than the
confessional statement of the appellants to prove the guilt of the
accused/appellants, despite which the Trial Court has passed the
impugned judgment and order of conviction and sentence dated
27.01.2006 and 28.01.2006 in Sessions Trial No. 10 of 2000
arsing out of Sadar P.S. Case No. 08 of 1998. Therefore, the
same deserve to be quashed and set aside.
28. Hence, the Judgment of conviction dated
27.01.2006 and order of sentence dated 28.01.2006 in Sessions
Trial No. 10 of 2000 arising out of Sadar P.S. Case No. 08 of
1998, passed by learned Additional Sessions Judge, Fast Track
Court No-I, Darbhanga is set aside and the accused/appellants
are acquitted from the charges leveled against them. As the
appellants are on bail, they are discharged from liability of their
bail bonds.
29. Accordingly, this appeal stands allowed
(Ramesh Chand Malviya, J)
Anand Kr.
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 18.03.2025
Transmission Date 18.03.2025
