Patna High Court
Vijay Kumar vs The State Of Bihar on 18 March, 2025
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1358 of 2024
Arising Out of PS. Case No.-150 Year-2010 Thana- ARER District- Madhubani
======================================================
Vijay Kumar, Son of Late Jharokhi Sahu, Resident of Village - Arer Hat,
Anrer, P.S. - Arer, District - Madhubani. ... ... Appellant
Versus
1. The State of Bihar
2. Hari Jha, Son of Late Ugramohan Jha, Resident of Village - Arer Dih, P.S. -
Arer, District - Madhubani.
3. Shashi Nath Jha, Son of Late Gangadhar Jha, Resident of Village - Arer Dih,
P.S. - Arer, District - Madhubani.
4. Raju Jha @ Rajiv Jha, Son of Late Chandeshwar Jha, Resident of Village -
Arer Dih, P.S. - Arer, District - Madhubani.
... ... Respondents
======================================================
Appearance :
For the Appellant/s : Mr. Gagan Deo Yadav, Advocate
Mr. Ravi Prakash, Advocate
For the Respondent/s : Ms. Shashi Bala Verma, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE SOURENDRA PANDEY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 18-03-2025
Heard learned counsel for the appellant and learned
Additional Public Prosecutor for the State.
2. This appeal has been preferred for setting aside the
judgment of acquittal dated 19.09.2024 (hereinafter referred to as
the 'impugned judgment') passed in Sessions Trial No. 113/2012,
C.I.S. Registration No. 430/2014 arising out of Arer P.S. Case No.
150 of 2010 passed by learned Additional Sessions Judge-1st
Court, Madhubani (hereinafter referred to as 'the learned trial
Patna High Court CR. APP (DB) No.1358 of 2024 dt.18-03-2025
court'). By the impugned judgment, the learned trial court has
been pleased to acquit respondent nos. 2 to 4 of the charges under
Section 302/34 of the Indian Penal Code (in short 'IPC') giving
them benefit of doubt.
Prosecution Case
3. The prosecution case is based on the fardbeyan of one
Vijay Sahu recorded by Nusrat Jahan, PSI of town PS Madhubani
on 02.12.2010 at 11:30 AM at Sadar Hospital, Emergency Ward,
Bed No. 02, Madhubani. The informant is the father of the
deceased who has deposed as PW-7 in course of trial. In his
fardbeyan, the informant has stated as under:-
"On 02.12.2010 at about 07:30 AM in the morning, he
was at his shop with his deceased son. He had asked his deceased
son, namely, Deepak Kumar @ Deepu to open the shop and,
accordingly, his son had opened the shop and was sitting there. In
the meantime, his neighbour Hari Jha came at his shop and took
his deceased son Deepak Kumar to Arer Deeh Tol. At about 08:00
O'clock, the co-villager, namely, Deelip Sah came to inform him
that his son Deepak Kumar is in serious condition. On receiving
this information, the informant went to the house of Hari Jha and
saw that (1) Hari Jha, (2) Raju Jha, and (3) Shashi Nath Jha along
with 10-15 villagers were present there and had kept his son in the
Patna High Court CR. APP (DB) No.1358 of 2024 dt.18-03-2025
middle, when the informant interrogated from his son then he did
not respond, he was unconscious. When the informant lifted his
son to take him to hospital, then the above-named accused persons
told him that he would be fine in few minutes and nothing has
happened to him. Yet, the informant along with his brother Anand
Kumar took his son to Dr. R. K. Singh for primary treatment
where seeing his critical condition, the Doctor immediately
referred his son to Sadar Hospital, Madhubani. Immediately, the
informant, his brother Anand Kumar and co-villager Om Prakash
Sahu along with other villagers brought his son to Sadar Hospital,
Madhubani by a Scorpio Vehicle where in course of treatment, his
son Deepak Kumar died. When the informant inquired from the
villagers about the incident, they told him that Hari Jha had asked
his son to tie electric wire on the electric pole by using a ladder
and in course of doing the same, the ladder slipped and he fell
down and became unconscious due to which, later on, he died."
4. After investigation, police submitted a chargesheet
bearing No. 142 of 2011 dated 30.10.2011 under Section 302, 34
of the IPC. All the three accused were sent up for trial.
5. The learned Magistrate took cognizance of the
offence under Section 302, 34 IPC whereafter having noticed that
the offence is triable by a court of session, after completion of
Patna High Court CR. APP (DB) No.1358 of 2024 dt.18-03-2025
formalities under Section 207 CrPC, learned Magistrate committed
the records to the court of sessions where it was registered as
Sessions Trial No. 113 of 2012.
6. The charges were explained to the accused persons
who denied the charges and claimed to be tried.
7. On behalf of the prosecution as many as nine
witnesses were examined and some documents were marked
exhibits. The statement of the accused persons were recorded
under Section 313 CrPC and thereafter, the defence examined
three witnesses. The name of the witnesses produced on behalf of
the prosecution and the defence and the documents marked
exhibits on their behalf are mentioned hereunder in tabular form:-
List of Prosecution Witnesses
PW-1 Bhogendra Sah
PW-2 Dileep Sah
PW-3 Anand Kumar Sah
PW-4 Hare Ram Sah
PW-5 Raghuvir Sahu
PW-6 Jay Prakash Kumar
PW-7 Vijay Kumar @ Vijay Sahu
PW-8 Sangeet Kumar Sinha
PW-9 Arun Rajjak
List of Defence Witnesses
DW-1 Baleshwar Jha
DW-2 Shiv Kumar Jha
DW-3 Narayan Kamat
Patna High Court CR. APP (DB) No.1358 of 2024 dt.18-03-2025
List of Prosecution Exhibits
Ext.-1 Signature of Anand Kumar Sah on
the Fardbeyan
Ext.-2 Signature of the informant on the
Fardbeyan
Ext.-3 Post-mortem Report
Ext.-4 Signature of SHO Arun Rajjak on
the pagination of the Fardbeyan
Ext.-5 Signature of Arun Rajjak on the
Formal FIR
Ext.-6 Inquest Report
Findings of the Learned Trial Court
8. The learned trial court, having analysed the evidences
available on the record and the submissions advanced on behalf of
the parties, concluded that the prosecution has failed to prove the
charge levelled against the accused persons. The learned trial court
found that all the witnesses examined on behalf of the prosecution
are hearsay and interested witnesses. It has been held that the
entire prosecution story is doubtful as the reason of injury causing
death has not been proved by the prosecution. Having recorded
this finding, the learned trial court has been pleased to acquit the
accused persons.
Submissions on behalf of the Appellant
Patna High Court CR. APP (DB) No.1358 of 2024 dt.18-03-2025
9. While assailing the judgment of the learned trial
court, learned counsel for the appellant has submitted that the
learned trial court has failed to appreciate that there was a strong
motive to kill the deceased. His emphasis is that in course of trial,
the prosecution witnesses have stated that there was an affair
between the daughter of the accused, namely, Hari Jha and the
deceased and it is for this reason, the accused Hari Jha called the
deceased and killed him.
10. Learned counsel for the appellant submits that even
though there is no eye witness to the occurrence of killing of the
deceased, the circumstantial evidences are strong and complete the
chain of criminological evidences leading to an irresistible
conclusion that the accused persons-respondent nos. 2 to 4 are
guilty of committing the offence for which they were charged.
Submissions on behalf of the State
11. On the other hand, learned Additional Public
Prosecutor for the State has submitted that the learned trial court
has rightly recorded that the whole prosecution story is doubtful. It
is submitted that there is no infirmity in the appreciation of
evidences by the learned trial court. This being an appeal against
the judgment of acquittal, this Court being a court of appeal would
not interfere with the judgment of acquittal on a mere asking.
Patna High Court CR. APP (DB) No.1358 of 2024 dt.18-03-2025
12. Learned Additional Public Prosecutor has brought to
the notice of this Court the initial case of the informant that his son
was sitting at the shop when one of the accused Hari Jha came
there and asked his son to come with him and took his son, the I.O.
(PW-9) has clearly stated that in course of investigation, the
informant had not said that Hari Jha had come by motorcycle and
had taken away his son.
13. Learned Additional Public Prosecutor would further
submit that in his fardbeyan, PW-7 has stated that when he reached
to the house of Hari Jha, he found that apart from the accused
persons, 10-15 co-villagers were also present and his son was there
in middle of them lying unconscious. He along with his brother
Anand Kumar brought his son in unconscious condition for
primary treatment to Dr. RK Singh who referred his son to Sadar
Hospital, Madhubani and thereafter, he had brought his son to the
Sadar hospital with his brother and co-villager Om Prakash Sahu
and other villagers by a Scorpio, however, in course of trial, no
independent witness has deposed on this point. Dr. R.K. Singh has
not been examined. The son of the informant died in course of
treatment in the emergency ward and thereafter, the informant
claims to have inquired about the occurrence from his co-villager
and he came to know that his son had climbed the electric pole
Patna High Court CR. APP (DB) No.1358 of 2024 dt.18-03-2025
with the help of a stair and he did so at the instance of Hari Jha,
while doing this work, he slipped down from the stair and fell
down on the earth and thereafter, he became unconscious.
14. Learned Additional Public Prosecution submits that
there is no whisper in the fardbeyan of PW-7 that there was any
affair between the deceased and the daughter of Hari Jha and for
that reason, Hari Jha had killed him. It is submitted that no motive
at all has been assigned by the informant behind the killing of the
deceased, moreover, from the fardbeyan itself it is evident that the
son of the informant had fallen down from the stair and thereafter,
he had become unconscious that is the cause of death.
15. Learned Additional Public Prosecutor, therefore,
submits that in course of trial, the prosecution witnesses were not
found consistent and they changed the whole prosecution story
which the learned trial court has rightly doubted.
Consideration
16. Having heard learned counsel for the appellant and
learned Additional Public Prosecutor for the State, we have also
perused the records of the learned trial court. It is evident that in
the present case, the prosecution witnesses are only the family
members of the deceased. The informant (PW-7) has proved his
signature on the written fardbeyan which is marked as Exhibit '2'.
Patna High Court CR. APP (DB) No.1358 of 2024 dt.18-03-2025
In his cross-examination, he has stated that he had no inimical
relation with any of the accused persons. He has deposed in
paragraph '20' that he had not seen the occurrence and he has
further deposed in paragraph '24' that he had listened that his son
was murdered due to love affair. He has also deposed in paragraph
'31' that due to death of his son, he was very shocked and
senseless but he had not stated before police that he was not in a
position to give statement.
17. Bhogendra Sah (PW-1) reached the place of
occurrence from his field only after hearing that "Deepak ko maar
diya". This witness is not an eyewitness to the occurrence. He has
propounded a story that the deceased was in relationship with Hari
Jha's daughter.
18. Similarly, Dileep Sah (PW-2) and Anand Kumar Sah
(PW-3) reached the place of occurrence only to see that the
deceased was lying on the floor and the blood and foam was
coming out from his mouth. This witness (PW-3) has deposed in
paragraph '6' that Hari Jha and others had spread a rumor that
Deepak died due to electric shock which is wrong. In his cross-
examination, PW-3 has stated that the place of occurrence is Arer
Deeh Tol and his house is at about one kilometre from the place of
occurrence. During the registration of the FIR, he was present and
Patna High Court CR. APP (DB) No.1358 of 2024 dt.18-03-2025
signed as a witness in the FIR, however, his statement was
recorded by police after three days. This witness has clearly
deposed in paragraph '21' that he had not seen the assault. He has
stated that Deepak was regularly going to Hari Jha's house and
was staying there for half and hour to one hour and was playing
carom. There was no quarrel between them. This witness is also a
hearsay witness.
19. Hare Ram Sah (PW-4) is another witness who has
deposed that he was in his shop and saw that Hari Jha came and
called Deepak Kumar @ Deepu and they went together. He has
deposed that after sometime, Dileep Sah had come and stated to
Vijay Sah that blood is coming out from the mouth of Deepak and
Deepak was near the courtyard of Hari Jha. They went there and
saw Hari Jha, Raju Jha and Shashi Nath Jha, all had surrounded
him and blood was coming out from the mouth of Deepak. This
witness has then deposed that Deepak was indulged in love affair
with Hari Jha's daughter and due to this agony, he committed the
offence. This witness has deposed in paragraph '11' that he saw
Deepak in injured condition and he had doubted that Deepak had
died due to assault. He has stated that Deepak was assaulted by
means of lathi-danda on his chest and he had about 20-25 marks of
assault on his body but he had not seen whether the blood was
Patna High Court CR. APP (DB) No.1358 of 2024 dt.18-03-2025
coming out from his chest or not. The defence suggested that this
witness was a hearsay witness and he had not seen any part of the
occurrence. Raghuvir Sahu (PW-5) is another witness who has
deposed that he was in the house of Hari Jha for collection of
generator fees and when he reached near the house of Hari Jha, he
saw Hari Jha, Raju Jha and Shashi Nath Jha all carried injured
Deepak near the courtyard and at that time Deepak was senseless.
It is evident from the deposition of PW-5 that he is also not an
eyewitness to the occurrence. He has clearly deposed that he had
not seen the accused persons assaulting him and when he saw
Deepak, he was senseless and his body was lying on the earth
about 17-18 feet far from the courtyard.
20. Jay Prakash Kumar (PW-6) has deposed that he and
his brother Deepak Kumar were in the shop, in the meantime, Hari
Jha came and talked to Deepak whereafter they went together. A
perusal of the evidence of this witness would show that he reached
the place of occurrence only to see that Deepak Kumar was lying
in very serious condition, blood and foam was coming out from his
mouth and Hari Jha, Raju Jha and Shashi Nath Jha were present
there. This witness has stated in paragraph '10' of his deposition
that at the time of occurrence he was reading in Class VII and he
was unable to say as to what statements were given by his father in
Patna High Court CR. APP (DB) No.1358 of 2024 dt.18-03-2025
his fardbeyan. He had not seen the dead body of his brother and he
has deposed that Bhogendra Sah and Hare Ram Sah who are PW-1
and PW-4 respectively in this case are the co-villager and cousin
brother of the witness. He has further deposed that the witness
Raghubir Sahu (PW-5) is also a co-villager. This witness was
suggested that his brother Deepak died due to fall from electric
pole. It is evident from the deposition of PW-6 that he is not an
eyewitness and he has not seen any part of the occurrence.
21. We have already discussed the deposition of the
informant (PW-7) hereinabove. There is no iota of doubt that PW-7
is not an eyewitness to the occurrence. He has stated in paragraph
'20' of his deposition that what happened with his son, he had not
seen. He has denied this suggestion that he had instituted the case
on the basis of hearsay. He has accepted that the witnesses
Bhogendra Sah, Hare Ram Sah and Raghubir Sahu are his close
relatives and Jay Prakash Kumar is his son. The defence called
upon the informant to say as to in which part of the body of the
victim, he had seen the injury, the informant replied that blood was
coming out from mouth and nose and he had also seen a red sign
on his neck. He has deposed that it seems that someone assaulted
him when he saw his body. The defence suggested this witness that
he was giving a false evidence that his son died due to fall from
Patna High Court CR. APP (DB) No.1358 of 2024 dt.18-03-2025
electric pole and filed this false case, the informant denied this
suggestion. To this Court, it appears that the learned trial court has
rightly concluded in its analysis that the informant himself is a
hearsay witness and by denying the suggestion as regards the filing
of the case and the reasons shown thereunder, he has not supported
the prosecution case.
22. Sangeet Kumar Sinha (PW-8) is the Head Clerk who
was posted at Sadar Hospital, Madhubani on 02.12.2012. He has
deposed in his cross-examination that he was working with Dr.
Kedar Singh. Dr. Kedar Singh had died, therefore, this witness has
proved his signature and writing which has been marked Exhibit
'3'. He had no knowledge of the post-mortem report and according
to him, it was not prepared in his presence.
23. The I.O. of the case is one Arun Rajjak who has been
examined as PW-9. He has stated that on 05.12.2010 he was
posted at Arer PS as SHO and on that day, he had registered this
case giving rise to Arer P.S. Case No. 150 of 2010. He has proved
the writing and signature on the endorsement which has been
marked Exhibit '4'. He had also signed the formal FIR which has
been marked Exhibit '5'. This witness had himself taken charge of
the investigation, recorded the re-statement of the informant and
thereafter recorded the statement of the witnesses. He had taken
Patna High Court CR. APP (DB) No.1358 of 2024 dt.18-03-2025
the inquest report from Town Police station and mentioned in the
case diary. He has proved the inquest report which was written and
signed by the PSI N. Jahan and same has been marked Exhibit '6'.
He has deposed in his cross-examination that in the inquest report
column no. 8, it is mentioned that the victim died due to fall from
cement pole and it is mentioned in column 9 that villagers stated
that the victim died due to fall from electric pole. He has also
deposed that there is no eyewitness and he mentioned the place of
occurrence in the case diary in paragraphs '7' and '10' but had not
mentioned the statement of the residents in the boundary of the
place of occurrence. PW-9 has deposed in paragraph '5' that the
informant himself stated in his statement that victim died due to
fall from electric pole. He has further deposed that the witnesses
Bhogendra Sah(PW-1) and Hare Ram Sah (PW-4) had not deposed
before him. Regarding the witness Jai Prakash Kumar, PW-9 has
stated that in his statement, this witness had not stated the reason
of death of Deepak that he was in love with Hari Jha's daughter
and saw Hari Jha, Raju Jha and Shashi Nath Jha murdering him
under a conspiracy.
24. The defence examined three witnesses who have
stated that Deepak @ Deepu died due to fall from electric pole.
DW-2 has stated that he had seen the fall from electric pole and
Patna High Court CR. APP (DB) No.1358 of 2024 dt.18-03-2025
police had also recorded his statement in his investigation. DW-3
has further claimed that he had seen the occurrence and Deepu had
died due to fall from electric pole during electric work. Police had
also recorded his statement during investigation.
25. We have discussed the evidence of the prosecution
as well as the defence hereinabove. It is evident on scrutiny of the
materials on the record that in the beginning, the prosecution case
was that the deceased had fallen down from the electric pole and
due to the said fall, he had become unconscious. He was bleeding
from his mouth. Only in course of trial, the prosecution developed
a story that the deceased was having an affair with the daughter of
one of the accused, namely, Hari Jha (Respondent no. 2) and for
that reason, he has been murdered.
26. In our considered opinion, the prosecution has
miserably failed to bring clinching evidences on this point and the
failure of the informant to disclose this in the fardbeyan would
prove fatal to the prosecution. The occurrence has taken place in
the village where huge number of villagers were present at the
place of occurrence and some of the villagers are said to have
participated in carrying the deceased in injured condition to Dr.
R.K Singh for primary treatment but those villagers who could
have been independent witnesses to the occurrence have not been
Patna High Court CR. APP (DB) No.1358 of 2024 dt.18-03-2025
examined. We, therefore, find that the story developed by the
prosecution at a belated stage would not inspire confidence. There
being no eye witness to the occurrence, the prosecution has even
failed to establish the circumstances leading to an irresistible
conclusion that the accused persons are guilty of the offence.
27. In result, we find no reason to interfere with the
judgment of the learned trial court.
28. This appeal is dismissed.
(Rajeev Ranjan Prasad, J)
( Sourendra Pandey, J)
SUSHMA2/-
AFR/NAFR
CAV DATE
Uploading Date 20.03.2025
Transmission Date 20.03.2025
