Patna High Court
Sarba Singh vs State Of Bihar on 24 March, 2025
Author: Alok Kumar Pandey
Bench: Alok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.328 of 1996
======================================================
1. SARBA SINGH S/o Bir Bahadur Singh R/o vill - Nawadah, P.s.- Rivilganj,
Distt.- Saran
2. Upendra Singh S/o Chandeshwar Singh R/o vill - Nawadah, P.s.- Rivilganj,
Distt.- Saran
3. Nag Narayan Singh S/o Bikrama Singh R/o vill - Nawadah, P.s.- Rivilganj,
Distt.- Saran
4. Amresh Singh S/o Jitendra Singh R/o vill - Nawadah, P.s.- Rivilganj, Distt.-
Saran
... ... Appellant/s
Versus
STATE OF BIHAR
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 335 of 1996
======================================================
1. Lallan Singh S/o Bharat Singh R/o vill - Nawada, P.s.- Revilganj, Distt.-
Saran
2. Ganesh Singh S/o Bharat Singh R/o vill - Nawada, P.s.- Revilganj, Distt.-
Saran
3. Satyendra Singh S/o Bharat Singh R/o vill - Nawada, P.s.- Revilganj, Distt.-
Saran
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 328 of 1996)
For the Appellants : Mr. Shivendra Kishore, Senior Advocate
Mr. Ajay Kumar Thakur, Advocate
Mr. Saroj Kumar, Advocate
For the State : Mr. Sujit Kumar Singh, APP
For the Informant : Mr. Nishant Kumar Sinha, Advocate
(In CRIMINAL APPEAL (DB) No. 335 of 1996)
For the Appellants : Mr. Bindhyachal Singh, Senior Advocate
Mr. Kumar Awnish Ankit, Advocate
For the State : Mr. Sujit Kumar Singh, APP
For the Informant : Mr. Nishant Kumar Sinha, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY
Patna High Court CR. APP (DB) No.328 of 1996 dt.24-03-2025
2/45
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
Date : 24-03-2025
Both these appeals, filed under Section 374(2) of
the Code of Criminal Procedure, 1973 (hereinafter referred to as
'the Code'), are directed against the judgment of conviction
dated 30.07.1996 and order of sentence dated 31.07.1996,
passed by learned 2nd Additional District & Sessions Judge,
Saran, Chapra in Sessions Trial No.917 of 1994/31 of 1994,
arising out of Rivilganj P.S. Case No.126/93, whereby the
appellants have been convicted for the offences punishable
under Section 302 read with Section 34 of the Indian Penal
Code and they have been sentenced to undergo imprisonment
for life.
2. The prosecution case, in brief, is that on
13.12.1993
at 04:00 A.M., the fardbeyan of the informant,
namely, Srinath Singh was recorded by A.S.I. on the
embankment of village Raipura, Nawada wherein it is alleged
that on 12.12.1993 at 05:00 P.M., his son Lagan Deo Singh
(deceased) had gone to Rivilganj market along with four
accused persons, namely, Sarba Singh, Upendra Singh, Nag
Narayan Singh and Amresh Singh. The deceased did not return
home till 08:00 P.M. in the night. At about 10:00 P.M.,
Patna High Court CR. APP (DB) No.328 of 1996 dt.24-03-2025
Ramashankar Singh came to his house, called him and told that
the guardians of the above named four accused persons had
come to his house and asked him to inquire from the informant
whether his son has returned to his house or not, because their
sons had already returned home at 07:30 P.M. They told their
guardians that someone had shot the deceased on the
embankment while he was returning to his house. The informant
along with Ramashankar Singh, his nephew Amod Singh and
others went to Raipura, Nawada embankment. Thereafter they
saw the dead body of Lagan Deo Singh having gun shot injuries
on his head and chest lying by the side of the embankment
towards west. The dead body was lying in pool of blood. The
bicycle was also near the dead body. It is further alleged by the
informant that he has land dispute with the accused persons,
namely, Lalan Singh, Satyendra Singh and Ganesh Singh. These
three accused persons always threatened to do away with the
son of the informant. It is alleged that the accused persons who
had gone to Rivilganj market along with his son and the accused
persons who are his pattidars and others have conspired and
killed the deceased while he was returning to his house from
Rivilganj market at a lonely place on Raipura, Nawada
embankment.
Patna High Court CR. APP (DB) No.328 of 1996 dt.24-03-2025
2.1. After registration of the FIR, the Investigating
Officer started investigation and during course of investigation,
the Investigating Officer had recorded the statement of the
witnesses and also collected other materials. After investigation
was concluded, he filed charge-sheet against the appellants-
accused before the concerned Magistrate Court. As the case was
exclusively triable by Court of Sessions, the concerned
Magistrate committed the same to the Sessions Court under
Section 209 of the Code where the same was registered as
Sessions Trial No.917 of 1994/31 of 1994.
2.2. During course of trial, the prosecution has
examined 13 witnesses, namely, PW-1 Srinath Singh, PW-2
Ramashankar Singh, PW-3 Ahilya Kumari, PW-4 Dhaneshwara
Devi, PW-5 Meera Devi, PW-6 Parnu Devi, PW-7 Manohar
Thakur, PW-8 Harendra Kumar Singh, PW-9 Ramnath Singh,
PW-10 Sunil Kumar, PW-11 Amod Kumar Singh, PW-12
Shankar Ravidas and PW-13 Awadh Kishore Singh.
3. Heard Mr. Shivendra Kishore, learned Senior
Counsel assisted by Mr. Saroj Kumar for the appellants as also
Mr. Ajay Kumar Thakur, learned counsel for the appellants in
Criminal Appeal (DB) No.328 of 1996, Mr. Bindhyachal Singh,
learned Senior Counsel assisted by Mr. Kumar Awnish Ankit,
Patna High Court CR. APP (DB) No.328 of 1996 dt.24-03-2025
for the appellants in Criminal Appeal (DB) No.335 of 1996, Mr.
Sujit Kumar Singh, learned APP for the State as well as Mr.
Nishant Kumar Sinha, learned counsel appearing on behalf of
the informant in both the appeals.
4. Mr. Ajay Kumar Thakur, learned counsel for the
appellants appearing in Criminal Appeal (DB) No.328 of 1996
would mainly submit that present is a case of circumstantial
evidence and there is no eye-witness to the incident in question.
It is further submitted that the prosecution has tried to place the
theory of last seen together so far as the present appellants are
concerned. However, from the evidence led by the prosecution,
it can be said that there are major contradictions and
inconsistencies even in the said theory of last seen together. Mr.
Thakur would further contend that the appellants herein have
been arrested from their houses. Thus, from the conduct of the
appellants, it cannot be said that the appellants killed the
deceased. It is pointed out from the deposition given by the
informant (PW-1), who is father of the deceased, that in para-20,
the said witness has admitted that he did not see the deceased
talking to the appellants in the market. It is further submitted
that the said witness has further admitted that his son was
talking to some other person. However, he did not identify the
Patna High Court CR. APP (DB) No.328 of 1996 dt.24-03-2025
said person. Learned counsel for the appellants further submits
that in para-17, PW-1 has stated that he had not talked with his
son in the market and he had seen him from a distance who was
talking with someone in the market and at that time 15-20
persons were present at the chowk/market.
4.1. Mr. Ajay Kumar Thakur, learned counsel for
the appellants would further submit that even PW-2 has stated in
para-10 that he saw only Satyendra Singh at Rivilganj market
between 03:00-05:00 P.M. and in para-22, he had further stated
that he had not stated to Darogaji that on that day he met Srinath
Singh (informant) in the market. Further the said witness has
stated that he returned from the market from the same road and
due to dark night, dead body was not visible on the
embankment. The said witness has also admitted that the family
of the informant had no enmity with the accused Sarba Singh,
Upendra Singh, Nag Narayan Singh and Amresh Singh.
4.2. Mr. Thakur, learned counsel for the appellants
also submits that from the deposition of the prosecution
witnesses, it is evident that the present appellants had no enmity
either with the deceased or with the family of the deceased and,
in fact, the present appellants were good friends of the deceased.
At this stage, learned counsel has referred the deposition given
Patna High Court CR. APP (DB) No.328 of 1996 dt.24-03-2025
by PW-5, who is wife of the deceased. It is submitted that in
para-20, she has stated that her father-in-law (PW-1) was asking
the four appellants to be the witnesses.
4.3. Learned counsel thereafter referred the
deposition given by PW-12, the Investigating Officer, who has
stated that on 13.12.1993 at 02:45 A.M., Dafadar Dilram Ram
and Chowkidar Narayan Ram came at the police station and
informed that they have heard the sound of firing towards
Nawada village for which Station Diary Entry No.183, dated
13.12.1993 (Ext.3) was instituted. Learned counsel further
submits that the Investigating Officer, PW-12, has also deposed
that after recording the fardbeyan, he left for the police station
where he instituted the FIR, prepared Panchnama of the dead
body and started writing the case diary. However, he started
writing the case diary at 02:45 A.M. whereas the FIR was
lodged at 07:30 A.M. Prior to that, inquest report was prepared
at 06:00 A.M. wherein there is reference of police station case
number. Learned counsel for the appellants, therefore, urged that
even prior to lodging of the formal FIR at 07:30 A.M., police
station case number has been referred in the inquest report
which creates doubts and, in fact, the prosecution has
suppressed the initial version.
Patna High Court CR. APP (DB) No.328 of 1996 dt.24-03-2025
4.4. Learned counsel for the appellants lastly
contended that the prosecution has failed to prove the motive on
the part of the present appellants to kill the deceased. At this
stage, it is submitted that in the case of circumstantial evidence
motive assumes importance and in the present case, it is not the
case of the prosecution that the present appellants hatched a
conspiracy with other appellants of other appeal, i.e., the co-
accused. Learned counsel for the appellants, therefore, urged
that the present appeal be allowed and the impugned judgment
of conviction and order of sentence be quashed and set aside.
5. Mr. Bindhyachal Singh, learned Senior Advocate
appearing in Criminal Appeal (DB) No.335 of 1996 broadly
supported the submissions canvassed by Mr. Ajay Kumar
Thakur, learned counsel for the appellants appearing in Criminal
Appeal (DB) No.328 of 1996. However, learned Senior
Advocate for the appellants further submits that none of the
prosecution witnesses has stated that they have seen the present
appellants in company with the deceased on the date of incident.
The prosecution has alleged motive on the part of the present
appellants for commission of the crime. However, mere motive
would not be sufficient to substantiate the allegation and
establish the guilt of the accused in absence of any corroborative
Patna High Court CR. APP (DB) No.328 of 1996 dt.24-03-2025
legal and admissible evidence. It is further submitted that
motive howsoever strong would not be sufficient to convict the
accused persons unless the prosecution proves its case against
the appellants beyond all reasonable doubt on the basis of legal
and admissible evidence. Mr. Singh, learned Senior Advocate
further submits that motive as well as enmity is a double edged
sword and it may not only be indicative of the commission of
the crime but also compelling factor for the false implication of
the appellants. Learned Senior Advocate would submit that in
the present case, there is no evidence led by the prosecution
connecting the present appellants with the incident in question.
5.1. Learned Senior Advocate, therefore, urged that
the prosecution has miserably failed to complete the chain of
circumstances from which it can be established that the present
appellants have killed the deceased. Learned Senior Advocate,
therefore, urged that the present appeal be allowed and thereby
the impugned judgment of conviction and order of sentence be
quashed and set aside.
6. On the other hand, Mr. Nishant Kumar Sinha,
learned counsel for the informant has vehemently opposed the
present appeals. Learned counsel would submit that though the
present is a case of circumstantial evidence, the prosecution has
Patna High Court CR. APP (DB) No.328 of 1996 dt.24-03-2025
completed the chain of circumstances from which it is
established that the appellants have committed the alleged
offence. Learned counsel for the informant further submits that
so far as appellants of Criminal Appeal (DB) No.328 of 1996
are concerned, they came to the house of the deceased and
thereafter the deceased left the house in company with the said
appellants. The deceased was lastly seen in company with the
said appellants and thereafter his dead body was found. The
prosecution has proved the said aspect by leading cogent
evidence before the Trial Court. At this stage, learned counsel
further submits that so far as appellants of Criminal Appeal
(DB) No.335 of 1996 are concerned, the prosecution has proved
the motive on their part to kill the deceased. The prosecution
witnesses have specifically deposed with regard to the same
before the Trial Court. Learned counsel for the informant,
therefore, urged that the prosecution has proved the case against
all these appellants beyond all reasonable doubt and, therefore,
the Trial Court has not committed any error while passing the
impugned judgment of conviction and order of sentence and,
therefore, both the appeals be dismissed.
7. Learned APP has also supported the submissions
canvassed by learned Advocate appearing for the informant.
Patna High Court CR. APP (DB) No.328 of 1996 dt.24-03-2025
8. We have considered the submissions canvassed
by learned Advocates appearing for the parties. We have also
perused the evidence led by the prosecution before the Trial
Court. From the materials placed on record, it transpires that the
prosecution has examined 13 witnesses. At this stage, we would
like to appreciate the entire relevant extract of the depositions of
the prosecution-witnesses.
9. PW-1, Srinath Singh, who is informant of the
case, has deposed in his examination-in-chief that the
occurrence is of 12.12.1993. Sarba Singh, Amresh Singh,
Upendra Singh and Nag Narayan Singh came at his door at
05:00 P.M. and called his son. His son went to Rivilganj market
with them. After half an hour, he also went to the market and
saw his son with Amresh Singh, Sarba Singh, Nag Narayan
Singh, Upendra Singh, Lalan Singh, Ganesh Singh and Satyenra
Singh. They all were talking. He returned to his home at 7 O'
clock. It is further deposed by this witness in his examination-
in-chief that on the same day, Ramashankar Singh came to his
house at 10:00 P.M. and asked whether his son came to the
house or not. He replied that we are also concerned that why his
son did not return home. At which, Ramashankar Singh told that
Jitendra Singh, Vikram Singh, Chandeshwar Singh and Bachchu
Patna High Court CR. APP (DB) No.328 of 1996 dt.24-03-2025
Singh asked him to inquire whether Lagandeo Singh has
returned to his house or not and their sons had already returned
home and firing took place on the embankment. It is further
deposed that he went to the embankment along with his family
and villagers. The persons with whom his son went to the
market and their family members had not gone to the
embankment. The dead body of his son Lagandeo was lying on
the embankment. He saw gun shot injuries on the upper side of
left ear and beside the right ear. He also saw injury on the right
side of chest. Darogaji came to the embankment at 04:00 A.M.,
recorded his statement and he put his signature on the same
(Ext.1). It is further deposed that on 11th of December, Satyendra
Singh, Lalan Singh and Ganesh Singh came at his door and
threatened him. Case was also going on with them. He has no
enmity in the village besides them. Darogaji recorded his re-
statement. The said witness claims to identify Satyendra Singh,
Nag Narayan Singh and Lalan Singh in doc. He also claims to
identify those who had not come.
9.1. The said witness has stated in his cross-
examination that he has no enmity with Sarba Singh, Upendra
Singh, Nag Narayan Singh and Amresh Singh. He had not seen
them coming to his house before 5 O' clock on that day. In para-
Patna High Court CR. APP (DB) No.328 of 1996 dt.24-03-2025
20 of his cross-examination, he has stated that he had not talked
with Sarba, Upendra, Nag Narayan or Amresh nor he had seen
his son talking with the accused persons in the market. His son
was talking to someone else other than the accused persons
whom he did not identify. He has denied the suggestion that four
accused persons had not gone with his son to Rivilganj market
nor he himself had gone to Rivilganj market. He has further
denied the suggestion of giving false deposition and that the
accused persons have been implicated in this case for some
oblique purpose. The said witness has denied having knowledge
that Lalan Singh is the Principal of Lalan Singh Sanskrit
College, Godna. He has stated that Ganesh Singh practices as an
Advocate at Chapra. Satyendra Singh is an employee in B.S.F.
He has denied the suggestion that he was intentionally
concealing that a case was lodged against his son by Laxman
Yadav of demanding extortion on 14.03.1991 and having
snatched his bicycle. He has admitted that a civil case was
lodged by accused Lalan Singh and Ganesh Singh against him
for grabbing 2 Dhurs of land. He has denied to have stated in his
fardbeyan that on 11th December, 1993, Satyendra, Lalan and
Ganesh Singh had come to his door and stated that though you
have constructed the house but you will not succeed to get your
Patna High Court CR. APP (DB) No.328 of 1996 dt.24-03-2025
daughter married rather he would be finished. He had given his
second statement before Darogaji 2-1/2 hours after his first
statement which was recorded at 04:00 A.M. Darogaji had
recorded the statement of his nephew Ramashankar Singh. The
dead body was taken out at 6 O' clock. He has denied the
suggestion that as the land dispute was going on, he
intentionally implicated the accused persons.
10. PW-2, Ramashankar Singh has deposed in his
examination-in-chief that the incident is of 12.12.1993. He
received information of this incident at 10:15 P.M. He was
sleeping at that time and some persons were knocking at the
door. When he opened the door, Bachchu Singh, Vikrama Singh
and Jitendra Singh were standing outside. Vikrama Singh took
him to his house situated at a distance of 100 yards towards east.
There Vikrama Singh informed him that Amresh, Sarba and Nag
Narayan have come and have informed that an incident of firing
has taken place on embankment near Raipura, Nawada and
requested him to inquire whether Upendra and Lagan Deo had
arrived or not and they waited there. He had also informed that
while all the five, i.e., Amresh, Sarba, Nag Narayan, Upendra
and Lagan Deo were coming, the incident of firing had taken
place. It is further deposed that he first went to the house of
Patna High Court CR. APP (DB) No.328 of 1996 dt.24-03-2025
accused Upendra Singh and knocked at his door. The mother,
father, aunt of Upendra and Upendra himself came outside. He
asked Upendra as to whether Lagan Deo has come there or not
upon which Upendra informed in a frightened voice that they
came running and he does not know about Lagan Deo. The
witness then went to the house of Lagan Deo and inquired about
him when the father of Lagan Deo replied that Lagan Deo had
not returned. Upon this the deponent narrated about the incident
on which the family members of Lagan Deo started weeping.
After that, they altogether about 50 persons went to the
embankment. While on way, the bicycle was seen in the light of
lantern. The dead body of Lagan Deo was also lying there.
There was a mark of bullet injury above the left ear and another
bullet mark on the right side of chest. The bicycle was lying
beside the deceased, the watch was there on his wrist and
slippers were also in his legs. To his knowledge, Lagan Deo had
enmity with Lalan Singh, Ganesh Singh and Satyendra Singh
due to land dispute. Darogaji prepared the inquest report of the
deceased in his presence upon which he put his signature. He
identifies his signature and that of Srinath (Exts.1/2 and 1/3). He
has further deposed that he runs a shop at Rivilganj market and
goes to the shop at 08:00 A.M. and returns between 08:00 and
Patna High Court CR. APP (DB) No.328 of 1996 dt.24-03-2025
09:00 P.M. On the day of incident, he had seen accused
Satyendra Singh thrice in Rivilganj market between 03:00-05:00
P.M. He had met Lagan Deo's father at about 06:00 P.M.
Darogaji had recorded his statement on 14th December. He
identifies accused Upendra Singh and Lalan Singh present in
court and claims to identify others by face.
10.1. The said witness has stated in his cross-
examination in para-17 that they, about 15 persons, had gone to
the embankment at 11:00 P.M. In para-21 the said witness has
stated that Darogaji had talked to him, Srinarayan Singh, Arun
Singh etc. and Shankar Singh for about 1-1½ hours. A sepoy, he,
his nephew Raju Singh, Arun Singh and Vir Narayan Singh
stayed with the dead body and others went to the village with
Darogaji. Darogaji again came to the place of occurrence at
04:00-04:15 A.M. Darogaji had recorded the statement of
Srinath Singh at the place of occurrence. He had not recorded
the statement of anyone else. Darogaji remained with the dead
body till 07:00-07:15 A.M. Thereafter he went to the police
station. Until Darogaji was present at the place of occurrence, he
had not recorded his statement. He has further stated that he had
stated before Darogaji to have seen Satyendra Singh thrice at
Rivilganj market on the relevant date, he is not sure whether he
Patna High Court CR. APP (DB) No.328 of 1996 dt.24-03-2025
had had noted it down or not. He has denied to have stated
before Darogaji that he had met Srinath Singh in the market on
that day. He had not stated in his statement as to when Sarba
Singh, Upendra Singh, Nag Narayan and Amresh Singh had
returned from the market. He has denied the suggestion of false
implication due to land dispute. In his further cross-
examination, the said witness has stated that the dead body was
discovered by the northern side of embankment. Due to
darkness at the embankment, dead body was not visible. He had
returned from the market at 08:35 in the night. He had returned
from the market alone. On that day, he had not met deceased
Lagan Deo at any place. He has no knowledge about enmity
between Srinath Singh and his family and accused Sarba Singh,
Upendra Singh, Nag Narayan Singh and Amresh Singh. On
13.12.1993, he had to stay at home. On the same day all these
four accused persons were apprehended by the police. He has
denied the suggestion of giving totally false deposition. He has
also denied the suggestion that he had not met Vikrama Singh
and Jitendra Singh nor he had talked to them and being an
agnate, he had given false deposition to favour them.
11. PW-3, Ahilya Kumari has deposed in her
examination-in-chief that the incident is of 12th December, 1993.
Patna High Court CR. APP (DB) No.328 of 1996 dt.24-03-2025
That night, Ramashankar Singh had come to her house at 10:00
P.M. and called her father. All the family members came out.
Ramashankar Singh inquired whether Lagan Deo had come
home or not. Her father replied that he has not come. At this,
Ramashankar Singh narrated the incident of firing at the
embankment in which Lagan Deo was shot at and others fled
away. Hearing this, her father, her cousin Ramashankar Singh
and many others from the village went in search of Lagan Deo
towards the embankment. She has further deposed that her
family had enmity with Lalan Singh, Ganesh Singh and
Satyendra Singh as they were obstructing construction of her
house. They had also filed a case. Before the incident, Lalan
Singh, Ganesh Singh and Satyendra Singh had threatened her
family by stating that though the construction of house is
complete but they will not allow the marriage to happen rather
there will be a last rite before the marriage. Due to the incident,
her marriage could not take place. Darogaji had recorded her
statement. She claims to identify all the accused persons.
11.1. The said witness has stated in her cross-
examination that she had not gone to the embankment. Her
father and Ramashankar Singh went with the dead body from
Rivilganj to Chapra and returned on Monday at night. She has
Patna High Court CR. APP (DB) No.328 of 1996 dt.24-03-2025
further stated that Lalan Singh had lodged a case before this
incident against her brother and her father. On the day of
occurrence, her deceased brother was playing cards with the
four accused persons on the northern side of her door. They
played till about 01:30 P.M. At that night, her family members
and village people had heard the sound of firing at 07:30 P.M.
On being asked whether after the threat given before the
incident when her brother did not return till 10:00 P.M. and the
sound of firing was heard if her family members had discussed
about the incident or not, she replies 'No'. She further stated
that when her brother did not return till 10:00 P.M., none of her
family members had gone to search him. They did not even go
to the houses of the four accused whether they returned to their
houses or not. She has denied the suggestion to have given false
deposition.
12. PW-4, Dhaneshwara Devi has deposed in her
examination-in-chief that about eight and a half months ago on a
Sunday in the Hindi month of Aghan, accused Sarba, Amresh,
Nag Narayan and Upendra asked his deceased nephew Lagan
Deo to go with them to the market. Lagan Deo went with them
on a bicycle. When he did not return till 08:00 P.M., they slept.
In the rest of his chief, she has supported the version of the
Patna High Court CR. APP (DB) No.328 of 1996 dt.24-03-2025
informant. She has further stated that Darogaji had recorded her
statement. She had taken the names of all the seven accused
persons in her statement. She claims to identify all of them.
12.1. The said witness has stated in her cross-
examination that none from the families of Sarba, Upendra, Nag
Narayan and Amresh took part in the last rituals of Lagan Deo.
On that day in the afternoon, aforesaid four accused persons
were playing cards with Lagan Deo. She had seen them playing
cards. She has further stated that she saw them together at 5 O'
clock. None of her family members had enmity with these four
accused persons. She has admitted that she had stated in her
statement to Darogaji that Sarba, Nag Narayan, Amresh and
Upendra had come to her house and taken Lagan Deo with
them. She has denied the suggestion that she had given false
deposition.
13. PW-5, Meera Devi, who is wife of the
deceased, has deposed in her examination-in-chief that her
husband was murdered approximately eight months ago in the
month of Aghan. One day before the incident, Lalan Singh,
Ganesh Singh and Satyendra Singh had threatened of dire
consequences and said that they will not allow them to complete
the construction of the house. The marriage of her sister-in-law
Patna High Court CR. APP (DB) No.328 of 1996 dt.24-03-2025
was fixed but could not take place. On the date of incident, she
had seen Sarba Singh, Amresh Singh, Upendra Singh and Jag
Narayan Singh taking bath at the well situated in front of her
house at about 02:00 P.M. At about 05:00 P.M., they again
visited her house and took her husband with them to Rivilganj.
When he did not return till 08:00 P.M., she informed the same to
her father-in-law who said that all the seven will come together.
Ramashankar Singh came at night. Upon his call, all of her
family members came outside the house. He informed that
Lagan Deo has received bullet injury at Raipura embankment
whereas he, Sarba, Upendra Amresh and Jag Narayan returned
to their houses. Her father-in-law, brother-in-law etc. went to the
embankment. Her brother-in-law informed that his elder brother
has received bullet injuries and is no more. There was prior
enmity with the three accused who had threatened one day
before the incident. She has further stated that Darogaji had
recorded her statement. She claims to identify all the accused
persons.
13.1. The said witness has stated in her cross-
examination that in the night of incident, Darogaji had come to
her house and she had told him about the threat given. At that
time, only her statement was recorded. She has denied the
Patna High Court CR. APP (DB) No.328 of 1996 dt.24-03-2025
suggestion that she was tutored to give such statement before
Darogaji. She has further stated that the wife of the elder brother
of Sarba Singh's father was her aunt (Fua). Accused Lalan
Singh had negotiated her marriage. Her father-in-law had
requested Sarba, Jag Narayan, Amresh and Upendra to depose
in this case. She has denied the suggestion that she has falsely
implicated these four accused persons on the instruction of her
father-in-law.
14. Depositions of PW-6, Parnu Devi, PW-8,
Harendra Kumar Singh and PW-9, Ram Nath Singh need not be
gone into as they are tendered witnesses and have not supported
the prosecution case.
15. PW-7, Manohar Thakur is the doctor who has
deposed in his examination-in-chief that on 13.12.1993, he was
posted as Civil Assistant Surgeon at Sadar Hospital, Chapra. He
had conducted post mortem examination on the dead body of the
deceased and found following ante mortem injuries:-
"(A) On External Examination:
1. Rigor mortis present in all four limbs.
2. One circular hole on right temple size ¾" x ¾" with
charred inverted margins which was communicating with an
oval averted margin wound on left post-oracular area of skull,
Patna High Court CR. APP (DB) No.328 of 1996 dt.24-03-2025
size about 1" in diameter.
3. One circular hole on left upper back about ¾" in
diameter with charred inverted margin which was
communicating with an oval averted margined wound on right
upper chest, size about ½" in diameter.
(B) On Dissection:
1. Brain walls was pulp along and around the track
mentioned in injury no. 2 of part A of the report.
2. Both chest cavities and pericardial cavity was full
of clotted blood, right lung had a hole underlying the injury on
right upper chest mentioned in injury no. 3 of part A of this
report.
3. Pulmonary trunk was ruptured"
In his opinion death has been caused from
haemorrhage and shock from above mentioned injuries which
have been caused by firearms. Time elapsed since death -
within 24 hours of P.M.
15.1. In his cross-examination, the said witness has
stated that charring and burning are two different things. He did
not find burns or gun powder over the injuries. Burns cannot be
possible by a fire-arm. Only a ballistic expert can say that if a
man is fired by a fire-arm from a close range say a maximum
Patna High Court CR. APP (DB) No.328 of 1996 dt.24-03-2025
three feet what type of injury it would produce. He cannot say
from what distance the fire was made to produce the injuries
with charred margins. On dissection, he did not find any pillet,
bullet or any foreign body.
16. PW-10, Sunil Kumar has deposed in his
examination-in-chief that he was handed over the charge of
investigation by ASI, Shankar Ravidas on 28.12.1993. After
taking charge of investigation of this case, he examined the
prosecution witnesses who were investigated by his predecessor
also. According to para-70 of the case diary, he investigated four
accused persons together on 29.12.1993 at village Nawada.
During investigation, he was informed that the deceased was of
noble character and he had no enmity with anyone and he was
running a hotel in Banaras Cant. He completed the investigation
and finding ample evidence against the accused persons
submitted charge-sheet against them.
16.1. The said witness has stated in his cross-
examination that he had not visited the place of occurrence. He
had not gone to Banaras. He was not posted at Rivilganj P.S. in
1991. He was posted there from June, 1993 to September, 1994.
In para-8 he has stated that witness Ramashankar Singh had not
stated in his re-statement that he had seen Satyendra Singh
Patna High Court CR. APP (DB) No.328 of 1996 dt.24-03-2025
thrice at Rivilganj market. He had recorded the statement of
Ramashankar. He has further stated that this witness
(Ramashankar Singh) had not stated before him that Vikram told
him that Amresh, Sarba, Nag Narayan, Upendra and Lagan Deo
were returning when the firing took place and when they
knocked at the door of Upendra, he said that we have returned
home but he does not know about him (Lagan Deo). He has
further stated that he recorded the statements of four witnesses
together in para-70. He has further stated that neither Ahilya
Devi nor Daneshwari Devi nor Meera Devi supported the
sequence of events as claimed by the prosecution. He has denied
the suggestion that he did not conduct proper investigation in
this case.
17. PW-11, Amod Kumar Singh has deposed in his
examination-in-chief that the deceased was his cousin brother.
The incident is of 12.12.1993 during night hours. He has
supported the version of the informant regarding the manner of
occurrence. He has further stated that the concerned Jamadar
came at 04:00 A.M. and recorded the statement of Srinath Singh
which was counter signed by Srinath Singh and this witness also
put his signature on the same. He identifies his signature
(Ext.1/4). After recording the fardbeyan, Jamadar Saheb went to
Patna High Court CR. APP (DB) No.328 of 1996 dt.24-03-2025
the police station and again came that day and recorded his
statement at about 08:00-08:30 A.M. in village. He had arrested
accused Sarba Singh, Upendra Singh, Amresh Singh and Nag
Narayan Singh before recording the statement of this witness.
His family had prior enmity with Lalan Singh, Ganesh Singh
and Jitendra Singh in connection with construction of the house.
Lalan Singh and Gopal Singh had filed Civil Suit No.161/92
under Sections 107, 144 and 188 of CPC. The marriage of his
sister was fixed but before it could take place, the incident took
place. He has identified accused Upendra Singh and Lalan
Singh, present in court and claims to identify other accused
persons.
17.1. The said witness has denied the suggestion in
his cross-examination that as the four accused, namely, Sarba
Singh, Nag Narayan Singh, Upendra Singh and Amresh Singh
did not agree to depose in this case, they were falsely implicated
in this case. He has denied the suggestion that he has given false
deposition. He has also denied the suggestion that as the
aforesaid accused persons, namely, Lalan Singh, Satyendra
Singh and Ganesh Singh were creating hindrance in
construction of the house, he had falsely implicated them.
18. PW-12, Shankar Ravidas, who is the
Patna High Court CR. APP (DB) No.328 of 1996 dt.24-03-2025
Investigating Officer of this case, has deposed in his
examination-in-chief that on 13.12.1993 at 02:45 A.M., Dafadar
Dilram Ram and Chowkidar Narayan Ram came to the police
station and informed that firing took place near village Nawada.
On such information, he recorded Sanha No.183 (Ext.3), dated
13.12.1993. He claims to identify his signature on the Sanha
(Ext.1/5). After recording the Sanha, he proceeded towards
village Nawada at 04:00 A.M. and reached on the embankment.
He saw seven persons of village Nawada and the dead body was
lying near embankment in the left side. He recorded the
statement of Srinath Singh (informant) at the place of
occurrence. He also prepared the inquest report at the place of
occurrence. It is further deposed by this witness in his
examination-in-chief that after recording the fardbeyan, he
proceeded for the police station and registered the formal FIR
(Ext.6). Thereafter he recorded the re-statement of the
informant. He arrested accused Sarba Singh, Amresh Singh,
Upendra Singh and Nag Narayan Singh from village Nawada
and went to the place of occurrence. He recorded the statement
of Amod Singh in village Nawada. The said witness has
inspected the place of occurrence. He found the dead body on
the western side of the embankment. He found bullet injuries in
Patna High Court CR. APP (DB) No.328 of 1996 dt.24-03-2025
chest and temporal region of the deceased. He also found blood
on the ground. He sent the dead body of the deceased for post
mortem. On the same day, he went to the houses of accused,
Lalan, Satyendra and Ganesh but they were found absconding.
He again went to arrest them but they were found absconding.
He filed application in the court of learned CJM for getting non-
bailable warrant of arrest and after getting the same, he again
raided the houses of the accused, but they were found
absconding. During the course of investigation, he recorded the
statements of Amod Singh, Ramashankar Singh, Ahilya Kumari,
Shankar Singh, Prithvi Singh, Arun Singh, Rajnath Singh,
Parbhu Devi, Nita Devi and Dhaneshwari Devi. Thereafter he
procured the post mortem report. It is further stated that on the
order of S.H.O., Sunil Kumar, he handed over the case diary to
him and thereafter Sunil Kumar further investigated the case.
18.1. The said witness has stated in his cross-
examination that this case was supervised by the Superintendent
of Police in which he had not found sufficient evidence against
accused, Lalan Singh, Ganesh Singh and Satyendra Singh.
Sanha was registered in this case on the report of Chowkidar
and Dafadar in his presence. During course of investigation,
their statements were not recorded. After recording the
Patna High Court CR. APP (DB) No.328 of 1996 dt.24-03-2025
fardbeyan, he registered the case at the police station. He had
Panchnama of the dead body at 06:00 A.M. He had arrested
accused, Sarba Singh, Amresh Singh, Upendra Singh and Nag
Narayan Singh from their houses. The date and place of their
arrest is not mentioned in the case diary. He had recorded the
statement of Ramashankar Singh on 14.12.1993 along with
Ahilya Kumari. On 17.12.1993, he also recorded the statements
of Shankar Singh, Prithvi Singh, Arun Singh and Dhaneshwari
Devi. The informant had not stated in his fardbeyan that he had
followed his son after half an hour of his departure and had seen
him talking with Amresh Singh, Sarba Singh, Nag Narayan
Singh, Upendra Singh, Lalan Singh, Ganesh Singh and
Satyendra Singh in the market. It is further stated by him that
witness Ramashankar Singh had not stated before him in his
statement that he had seen Satyendra Singh thrice at Rivilganj
market. Witness Ahilya Kumari had not stated in her statement
that though the construction of house is complete but now last
rite is to follow rather she had stated about the threat given.
Witness Dhaneshwar Devi had not stated in her statement that
Lalan Singh, Ganesh Singh and Satyendra Singh had threatened
Lagan Deo by saying that they will not allow the marriage of his
sister to be organized. Witness Meera Devi though had not
Patna High Court CR. APP (DB) No.328 of 1996 dt.24-03-2025
stated in her statement about the threat given but she had
mentioned that the accused persons were saying that they will
not allow to complete the construction. In his further cross-
examination, the said witness has stated that he was in charge of
investigation when Sanha No.183, dated 13.12.1993 was
registered. He had signed the same at 02:45 A.M. There is no
mention in the said Sanha that Lagan Deo Singh has received
bullet injury or that he has been killed. The Sanha does not bear
the signatures of either Dafadar Dilram Rai or Chowkidar
Narayan Rai. After this, handing over the charge of station diary,
he proceeded for the place of occurrence. It took him 2-3 hours
to reach the place of occurrence from Rivilganj. He had not
recorded anyone's statement before reaching the place of
occurrence. The distance of the place of occurrence from
Rivilganj police station is 2 kms. He had gone to the place of
occurrence on foot. He had started writing the case diary at
02:45 A.M. in the night of 13.12.1993. Neither in this Sanha nor
in the Sanha recorded after this, he had written to have
proceeded for village Raipura or Nawada. Both the Sanhas are
before him at the time of giving evidence. He had started
writing the case diary before recording the statement of
informant, Srinath Singh. When he started writing the case diary
Patna High Court CR. APP (DB) No.328 of 1996 dt.24-03-2025
at 04:00 A.M. again on 13.12.1993, he wrote that he returned to
the police station after recording the fardbeyan of Srinath Singh
and registered Rivilganj P.S. Case No.126/93 on that basis. In
his further cross-examination, the said witness has stated that he
registered the case on 13.12.1993 at 07:30. He conducted the
inquest on 13.12.1993 at 06:00 A.M. and wrote Rivilganj P.S.
Case No.126/93 in column no.1 of the inquest. He completed
the said inquest at the place of occurrence. He investigated this
case till 28.12.1993. It is stated by this witness in his cross-
examination that Srinath had not stated in his fardbeyan that
Ramashankar Singh told him that Jitendra Singh, Vikram Singh,
Chandeshwar Singh and Bachchu Singh had asked him to
inquire whether Lagan Deo came to his house or not and that
firing took place on the embankment. Witness Ramashankar had
stated in his statement that Vikram told that firing took place
while Amresh, Sarba, Nag Narayan, Upendra and Lagandeo
were returning. Witness Ahilya Kumari had not stated in her
statement that Ramashankar told that Nag Narayan, Sarba, and
father of Amresh went to his house and told that their sons have
come and Lagan Deo was shot on the embankment. PW-12 has
further stated that he recorded the statement of Dhaneshwari
Devi on 17.12.1993. He recorded the statement of Amod Kumar
Patna High Court CR. APP (DB) No.328 of 1996 dt.24-03-2025
Singh before arresting the accused persons. He did not find any
criminal antecedent of accused Sarba, Nag Narayan, Upendra
and Amresh. The said witness has denied the suggestion that he
has not done proper investigation in the case.
19. PW-13, Awadh Kishore Singh is a practicing
advocate and has attested Ext.1/5.
20. We have re-appreciated the entire relevant
evidence led by the prosecution before the Trial Court. We have
also considered the submissions canvassed by learned counsel
appearing for the parties. It is not in dispute that the present is a
case of circumstantial evidence and there is no eye-witness to
the incident in question. As per the case of the prosecution, son
of the informant had gone to Rivilganj market at about 05:00
p.m. on 12.12.1993 along with his friends, i.e., the appellants of
Criminal Appeal (DB) No.328 of 1996. However, the deceased
did not return home till 08:00 p.m. Thereafter at about 10:00
p.m., one Ramashankar Singh came to his house and told that
the guardians of the aforesaid appellants had come to his house
and asked him to inquire from the informant whether his son has
returned to his house or not, because their sons had already
returned home at 07:30 P.M. It was also told that someone had
shot the deceased on the embankment while he was returning to
Patna High Court CR. APP (DB) No.328 of 1996 dt.24-03-2025
his house. Thus, from the said information given by the
informant, it transpires that the guardians of the concerned
appellants-accused themselves informed about the incident
which took place. It would further reveal from the evidence that
the said appellants-accused were arrested from their houses.
Thus, while considering the case against the said accused, their
conduct is also required to be kept in mind.
21. Now, it is the case of the prosecution witnesses
and more particularly PW-1, who is the informant, that when he
went to the market, he saw his son with the aforesaid accused.
They all were talking. However, it is pertinent to note that
during cross-examination in para-20, the said witness has
admitted that he did not see the deceased talking to the said
appellants-accused in the market. The said witness further
admitted that his son was talking to some other person.
However, he did not identify the said person. It would further
reveal from para-27 of deposition of PW-1 that he has stated
that he had not talked with his son in the market and he had seen
him from a distance who was talking with someone in the
market. Thus, from the aforesaid deposition given by PW-1, it
can be said that the deceased was talking with some unknown
persons in the market and, therefore, it cannot be said that the
Patna High Court CR. APP (DB) No.328 of 1996 dt.24-03-2025
deceased was lastly seen in company with the said appellants-
accused. There are all chances that after leaving the house at
05:00 p.m. with the aforesaid appellants-accused, he was in
company with some other unknown persons as admitted by PW-
1 and, in fact, the deceased was talking with the said persons.
Thus, we are of the view that the theory of last seen together
placed by the prosecution before the Trial Court qua the said
appellants-accused is concerned, the same is misconceived.
22. Further, from the deposition given by PW-5,
who is wife of the deceased, it is revealed that in para-20 of her
deposition, she has stated that her father-in-law, i.e., PW-1 was
asking the four appellants to be the witnesses, therefore, it
appears that when the said appellants did not agree with regard
to the said suggestion, they have been implicated in the incident
in question. At this stage, it is relevant to note that PW-2 has
admitted that the family of the informant had no enmity with the
aforesaid appellants-accused and, in fact, from the evidence led
by the prosecution, it is revealed that the said appellants had no
enmity either with the deceased or with the family of the
deceased and, in fact, appellants and deceased were good
friends.
23. It further transpires from the evidence that the
Patna High Court CR. APP (DB) No.328 of 1996 dt.24-03-2025
prosecution has miserably failed to prove the motive on the part
of the first set of appellants to kill the deceased. At this stage, it
is relevant to observe that in the case of circumstantial evidence,
motive assumes importance. However, as observed hereinabove,
the prosecution has failed to prove the motive on the part of the
first set of appellants to kill the deceased.
24. On the point of motive assuming importance
the Hon'ble Supreme Court in the case of Ravi Sharma Vs.
State (Government of NCT of Delhi) & Anr, reported in (2022)
8 SCC 536, has observed in Para-14 as under:
14. When we deal with a case of
circumstantial evidence, as aforesaid, motive assumes
significance. Though, the motive may pale into
insignificance in a case involving eyewitnesses, it may not
be so when an accused is implicated based upon the
circumstantial evidence. This position of law has been dealt
with by this Court in Tarseem Kumar v. Delhi Admn.
[Tarseem Kumar v. Delhi Admn., 1994 Supp (3) SCC 367 :
1994 SCC (Cri) 1735] in the following terms : (SCC p. 371,
para 8)
"8. Normally, there is a motive
behind every criminal act and that is why
investigating agency as well as the court while
examining the complicity of an accused try to
ascertain as to what was the motive on the part of
the accused to commit the crime in question. It has
been repeatedly pointed out by this Court that where
the case of the prosecution has been proved beyond
all reasonable doubts on basis of the materials
Patna High Court CR. APP (DB) No.328 of 1996 dt.24-03-2025
produced before the court, the motive loses its
importance. But in a case which is based on
circumstantial evidence, motive for committing the
crime on the part of the accused assumes greater
importance. Of course, if each of the circumstances
proved on behalf of the prosecution is accepted by
the court for purpose of recording a finding that it
was the accused who committed the crime in
question, even in absence of proof of a motive for
commission of such a crime, the accused can be
convicted. But the investigating agency as well as
the court should ascertain as far as possible as to
what was the immediate impelling motive on the
part of the accused which led him to commit the
crime in question."
25. Now, so far as the appellants of Criminal
Appeal (DB) No.335 of 1996 are concerned, from the evidence
led by the prosecution, it would reveal that none of the
prosecution witnesses has stated that they have seen the said
appellants in company with the deceased on the date of incident.
There is no evidence connecting these appellants with the
incident in question. The only aspect, which has been alleged by
the prosecution against these appellants, is that they were having
motive to kill the deceased. We are of the view that mere motive
would not be sufficient to substantiate the allegation and
establish the guilt of the accused in absence of any corroborative
and legal evidence.
26. Now, at this stage, we would like to refer the
Patna High Court CR. APP (DB) No.328 of 1996 dt.24-03-2025
deposition given by PW-12, the Investigating Officer. The said
witness has stated that on 13.12.1993 at 02:45 A.M., Dafadar
Dilram Ram and Chowkidar Narayan Ram came at the police
station and informed that they have heard the sound of firing
towards Nawada village for which Station Diary Entry No.183,
dated 13.12.1993 (Ext.3) was instituted. Thereafter the said
witness came to the place of occurrence and, in fact, from his
deposition, it is revealed that he started writing the case diary at
02:45 a.m. At this stage, it is pertinent to note that the informant
lodged the FIR at 07:30 a.m. Prior to that, the inquest report was
prepared at 06:00 a.m. If the said inquest report is carefully
seen, it transpires that in the inquest report, there is reference of
police station case number. It is pertinent to observe at this stage
that formal FIR with police station case number was registered
at 07:30 a.m. Thus, prior to registration of the formal FIR at
07:30 a.m., the inquest report, which was prepared at 06:00
a.m., there was reference of said police station case number,
which creates a doubt and it is the specific case of the
defence/appellants herein that the prosecution has suppressed
the initial version.
27. At this stage, we would like to refer the decision
rendered by the Hon'ble Supreme Court in the case of Sharad
Patna High Court CR. APP (DB) No.328 of 1996 dt.24-03-2025
Birdhichand Sarda v. State of Maharashtra, reported in AIR
1984 SC 1622, wherein the Hon'ble Supreme Court has
observed in paragraph nos. 150 to 160 as under:
"150. It is well settled that the prosecution
must stand or fall on its own legs and it cannot derive any
strength from the weakness of the defence. This is trite law
and no decision has taken a contrary view. What some
cases have held is only this: where various links in a chain
are in themselves complete, then a false plea or a false
defence may be called into aid only to lend assurance to the
court. In other words, before using the additional link it
must be proved that all the links in the chain are complete
and do not suffer from any infirmity. It is not the law that
where there is any infirmity or lacuna in the prosecution
case, the same could be cured or supplied by a false defence
or a plea which is not accepted by a court.
151. Before discussing the cases relied upon
by the High Court we would like to cite a few decisions on
the nature, character and essential proof required in a
criminal case which rests on circumstantial evidence alone.
The most fundamental and basic decision of this Court is
Hanumant v. State of Madhya Pradesh 1952 SCR 1091 :
(AIR 1952 SC 343) . This case has been uniformly followed
and applied by this Court in a large number of later
decisions up-to-date, for instance, the cases of Tufail v.
State of Uttar Pradesh, (1969) 3 SCC 198 and Ramgopal v.
State of Maharashtra, AIR 1972 SC 656. It may be useful to
extract what Mahajan, J. has laid down in Hanumant's case
(at pp. 345-46 of AIR) (supra):
"It is well to remember that in cases where
the evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is to be
drawn should in the first instance be fully established, and
Patna High Court CR. APP (DB) No.328 of 1996 dt.24-03-2025
all the facts so established should be consistent only with
the hypothesis of the guilt of the accused. Again, the
circumstances should be of a conclusive nature and
tendency and they should be such as to exclude every
hypothesis but the one proposed to be proved. In other
words, there must be a chain of evidence so far complete as
not to leave any reasonable ground for a conclusion
consistent with the innocence of the accused and it must be
such as to show that within all human probability the act
must have been done by the accused."
152. 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 Maharashtra, (1973) 2 SCC 793 : (AIR
1973 SC 2622) where the observations were made:
"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 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
Patna High Court CR. APP (DB) No.328 of 1996 dt.24-03-2025
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.
153. These five golden principles, if we may
say so, constitute the panchsheel of the proof of a case
based on circumstantial evidence.
154. It may be interesting to note that as
regards the mode of proof in a criminal case depending on
circumstantial evidence, in the absence of a corpus delicti,
the statement of law as to proof of the same was laid down
by Gresson, J. (and concurred by 3 more Judges) in The
King v. Horry, (1952) NZLR 111, thus:
"Before he can be convicted, the fact of
death should be proved by such circumstances as render the
commission of the crime morally certain and leave no
ground for reasonable doubt: the circumstantial evidence
should be so cogent and compelling as to convince a jury
that upon no rational hypothesis other than murder can the
facts be accounted for."
155. Lord Goddard slightly modified the
expression 'morally certain' by 'such circumstances as
render the commission of the crime certain'.
156. This indicates the cardinal principle of
criminal jurisprudence that a case can be said to be proved
only when there is certain and explicit evidence and no
person can be convicted on pure moral conviction. Horry's
case (supra) was approved by this Court in Anant
Chintaman Lagu v. State of Bombay, (1960) 2 SCR 460 :
(AIR 1960 SC 500). Lagu's case as also the principles
enunciated by this Court in Hanumant's case (supra) have
been uniformly and consistently followed in all later
Patna High Court CR. APP (DB) No.328 of 1996 dt.24-03-2025
decisions of this Court without any single exception. To
quote a few cases -- Tufail case (1969) 3 SCC 198 (supra),
Ramgopal's case (AIR 1972 SC 656) (supra), Chandrakant
Nyalchand Seth v. State of Bombay (Criminal Appeal No
120 of 1957 decided on 19-2-1958), Dharambir Singh v.
State of Punjab (Criminal Appeal No 98 of 1958 decided on
4-11-1958). There are a number of other cases where
although Hanumant's case has not been expressly noticed
but the same principles have been expounded and
reiterated, as in Naseem Ahmed v. Delhi Administration,
(1974) 2 SCR 694 (696) : (AIR 1974 SC 691 at p. 693),
Mohan Lal Pangasa v. State of U.P., AIR 1974 SC 1144
(1146), Shankarlal Gyarasilal Dixit v. State of
Maharashtra, (1981) 2 SCR 384 (390) : (AIR 1981 SC 765
at p. 767) and M.G. Agarwal v. State of Maharashtra,
(1963) 2 SCR 405 (419) : (AIR 1963 SC 200 at p. 206) a
five-Judge Bench decision.
157. It may be necessary here to notice a
very forceful argument submitted by the Additional
Solicitor-General relying on a decision of this Court in
Deonandan Mishra v. State of Bihar, (1955) 2 SCR 570
(582) : (AIR 1955 SC 801 at p. 806), to supplement his
argument that if the defence case is false it would constitute
an additional link so as to fortify the prosecution case. With
due respect to the learned Additional Solicitor General we
are unable to agree with the interpretation given by him of
the aforesaid case, the relevant portion of which may be
extracted thus:
"But in a case like this where the various links as stated
above have been satisfactorily made out and the
circumstances point to the appellant as the probable
assailant, with reasonable definiteness and in proximity to
the deceased as regards time and situation. . . such absence
of explanation or false explanation would itself be an
Patna High Court CR. APP (DB) No.328 of 1996 dt.24-03-2025
additional link which completes the chain."
158. It will be seen that this Court while taking into account
the absence of explanation or a false explanation did hold
that it will amount to be an additional link to complete the
chain but these observations must be read in the light of
what this Court said earlier, viz., before a false explanation
can be used as additional link, the following essential
conditions must be satisfied:
(1) various links in the chain of evidence led by the
prosecution have been satisfactorily proved,
(2) the said circumstance point to the guilt of the accused
with reasonable definiteness, and
(3) the circumstance is in proximity to the time and
situation.
159. If these conditions are fulfilled only then a court can
use a false explanation or a false defence as an additional
link to lend an assurance to the court and not otherwise. On
the facts and circumstances of the present case, this does
not appear to be such a case. This aspect of the matter was
examined in Shankarlal's case (AIR 1981 SC 765) (supra)
where this Court observed thus:
"Besides, falsity of defence cannot take the place of proof of
facts which the prosecution has to establish in order to
succeed. A false plea can at best be considered as an
additional circumstance, if other circumstances point
unfailingly to the guilt of the accused."
160. This Court, therefore, has in no way departed from the
five conditions laid down in Hanumant's case (AIR 1952 SC
343) (supra). Unfortunately, however, the high Court also
seems to have misconstrued this decision and used the so-
called false defence put up by the appellant as one of the
additional circumstances connected with the chain. There is
Patna High Court CR. APP (DB) No.328 of 1996 dt.24-03-2025
a vital difference between an incomplete chain of
circumstances and a circumstance which, after the chain is
complete, is added to it merely to reinforce the conclusion
of the Court. When the prosecution is unable to prove any
of the essential principles laid down in Hanumant's case,
the High Court cannot supply the weakness or the lacuna
by taking aid of or recourse to a false defence or a false
plea. We are, therefore, unable to accept the argument of
the Additional Solicitor-General.
27.1. Thus, from the aforesaid decision rendered by
the Hon'ble Supreme Court, it can be said that in the case of
circumstantial evidence, there must be a chain of evidence.
Further the circumstances from which the conclusion of guilt is
to be drawn should be fully established and should exclude
every possible hypothesis, except the one to be proved, e.g.
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.
28. We would also like to refer and rely upon the
decision rendered by the Hon'ble Supreme Court in the case of
Reena Hazarika Vs. State of Assam, reported in (2019) 3 SCC
289, wherein the Hon'ble Supreme Court has observed in
paragraph 9 as under:
"9. The essentials of circumstantial evidence
stand well established by precedents and we do not
Patna High Court CR. APP (DB) No.328 of 1996 dt.24-03-2025
consider it necessary to reiterate the same and burden the
order unnecessarily. Suffice it to observe that in a case of
circumstantial evidence the prosecution is required to
establish the continuity in the links of the chain of
circumstances, so as to lead to the only and inescapable
conclusion of the accused being the assailant, inconsistent
or incompatible with the possibility of any other hypothesis
compatible with the innocence of the accused. Mere
invocation of the last-seen theory, sans the facts and
evidence in a case, will not suffice to shift the onus upon the
accused under Section 106 of the Evidence Act, 1872 unless
the prosecution first establishes a prima facie case. If the
links in the chain of circumstances itself are not complete,
and the prosecution is unable to establish a prima facie
case, leaving open the possibility that the occurrence may
have taken place in some other manner, the onus will not
shift to the accused, and the benefit of doubt will have to be
given."
29. Keeping in view the aforesaid decisions
rendered by the Hon'ble Supreme Court, if the evidence led by
the prosecution is examined, we are of the view that the
prosecution has failed to complete the chain of circumstances
and it cannot be said on the basis of the evidence led by the
prosecution that the present appellants have killed the deceased.
Thus, the prosecution has failed to prove the case against the
appellants of both these appeals beyond reasonable doubt and,
therefore, we are of the view that the Trial Court has committed
grave error while passing the impugned judgment of conviction
and order of sentence. Hence, the interference is required in the
Patna High Court CR. APP (DB) No.328 of 1996 dt.24-03-2025
said impugned judgment of conviction and order of sentence.
30. Accordingly, the impugned judgment of
conviction dated 30.07.1996 and order of sentence dated
31.07.1996, passed by learned 2nd Additional District & Sessions
Judge, Saran, Chapra in Sessions Trial No.917 of 1994/31 of
1994, arising out of Rivilganj P.S. Case No.126/93 is set aside.
31. All the appellants of both the appeals are
acquitted of the charges levelled against them. Since the
appellants of both the appeals are on bail, they are discharged
from the liabilities of their respective bail bonds.
32. Both these appeals stand allowed.
(Vipul M. Pancholi, J.)
(Alok Kumar Pandey, J.)
Sanjay/-
AFR/NAFR A.F.R.
CAV DATE NA
Uploading Date 10.04.2025
Transmission Date 10.04.2025
