Patna High Court
Mahesh Kumar @ Mahesh Das vs The State Of Bihar on 2 May, 2025
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad, Ashok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1432 of 2024
Arising Out of PS. Case No.-605 Year-2020 Thana- SONEPUR District- Saran
======================================================
Mahesh Kumar @ Mahesh Das S/o Baldeo Das R/o vill - Barbatta, P.S. -
Sonepur, Distt.- Saran
... ... Appellant
Versus
1. The State of Bihar
2. Akash Kumar @ Akash Rai S/o Maheshwar Rai R/o vill - Manpur
(Barhatta), P.S. - Sonepur, Distt.- Saran
3. Rajesh Sah S/o Vishwanath Sah R/o Anandpur, P.S. - Sonepur, Distt.- Saran
... ... Respondents
======================================================
with
CRIMINAL APPEAL (DB) No. 1434 of 2024
Arising Out of PS. Case No.-605 Year-2020 Thana- SONEPUR District- Saran
======================================================
Mahesh Kumar @ Mahesh Das Son of Baldeo Das Resident of Village-
Barbatta, P.S.- Sonepur, Distt.- Saran
... ... Appellant
Versus
1. The State of Bihar
2. Ranjan Kumar Son of Late Santlal Rai Resident of Village- Manpur
(Barhatta), P.S.- Sonepur, Distt.- Saran
... ... Respondents
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 1432 of 2024)
For the Appellant/s : Mr. Kumar Priya Ranjan, Advocate
For the Respondent/s : Mr. Binod Bihari Singh, APP
(In CRIMINAL APPEAL (DB) No. 1434 of 2024)
For the Appellant/s : Mr. Kumar Priya Ranjan, Advocate
For the Respondent/s : Mr. Binod Bihari Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 02-05-2025
These two appeals have been listed simultaneously for
consideration. In Cr. App.(DB) No.1432 of 2024, the appellant has
Patna High Court CR. APP (DB) No.1432 of 2024 dt.02-05-2025
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assailed the judgment of acquittal dated 06.09.2024 passed by the
learned Additional District and Sessions Judge-II, Saran at Chapra
(hereinafter referred to as the trial court) in Sessions Trial No.180
of 2021 arising out of Sonepur P.S. Case No.605 of 2020. In this
Sessions trial two accused were facing the charges under Section
302/34 of the Indian Penal Code (in short 'IPC') and Section 27 of
the Arms Act. They have been acquitted giving them benefit of
doubt.
2. In Cr. App.(DB) No. 1434 of 2024, the appellant is
the same and one person who has assailed the judgment of
acquittal dated 06.09.2024 passed by the same trial court in
Sessions Trial No. 364 of 2022. In this Session Trial only one
accused was facing the charges under Section 302/34 IPC and
Section 27 of the Arms Act.
Prosecution Case
3. The prosecution case is based on the written
information of one Mahesh Kumar who in his written information
dated 16.08.2020 alleged as under:-
"On 15.08.2020 between 06:30 P.M. to 07:30 P.M., a
phone call came on the mobile of his son Dharmendra Kumar and
then his son went away by saying that he will return in a while. At
about 09:30 P.M., some people informed that Dharmendra Kumar
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has been shot dead by unidentified criminal near Bajrangbali
Temple at Manpur village adjacent to Bypass Road. Then the
informant along with others went there and got to know that his
son has been taken to Sadar Hospital, Chapra. After reaching Sadar
Hospital Chapra, the informant got to know that an unknown
criminal has shot his son to death. After post-mortem, they came to
police station on 16.08.2020."
4. On the basis of the aforementioned written
information, a formal FIR giving rise to Sonepur P.S. Case No.605
of 2020 dated 16.08.2020 was registered under Section 302/34 IPC
and Section 27 of the Arms Act.
5. Upon completion of investigation police submitted
first charge-sheet bearing No. 12 of 2021 dated 08.01.2021 under
section 302/34 IPC and Section 27 of the Arms Act against two
accused namely, (i) Akash Kumar @ Akash Rai and (ii) Rajesh
Shah. Cognizance was taken by the learned Magistrate whereafter
the records were committed to the court of learned Sessions Judge,
Saran at Chapra. It was registered as Sessions Trial No. 180 of
2021.
6. The second charge-sheet bearing No. 265 of 2021
dated 27.06.2021 was filed for the offences under Section 302/34
IPC and Section 27 of the Arms Act against one accused namely,
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Raju Paswan. In this case, after cognizance the records were
committed to the Court of Sessions and it was registered as
Sessions Trial No. 364 of 2022.
7. Mr. Kumar Priyaranjan, learned counsel for the
appellant has submitted that in both the trials, the prosecution
witnesses and the documentary evidences are the same and one. In
this connection, learned trial court has drawn the attention of this
Court to the order dated 27.08.2024 passed in Sessions Trial No.
364 of 2022 by the learned Additional District Judge-II, Saran at
Chapra. By this order, the learned trial court has after hearing both
the sides passed an order after marking exhibits in the present case
which were available in the original record of Sessions Trial No.
180 of 2021.
8. Learned counsel submits that the prosecution
witnesses in the present case are the same and one who have
deposed as prosecution witnesses in Sessions Trial No. 180 of
2021. He has stated to the extent that deposition of the witnesses
are the same and one.
9. In the aforesaid view of the matter on the request of
learned counsel for the parties, we have heard both the appeals
which are being disposed of by this common judgment.
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10. On behalf of the prosecution as many as 7 witnesses
deposed and 7 documents were marked exhibits. List of the
witnesses and list of documents marked exhibits on behalf of the
prosecution are as under :-
List of Prosecution Witnesses
P.W.-1 Birendra Kumar
P.W.-2 Mahesh Kumar @ Mahesh Das
P.W.-3 Sharda Devi
P.W.-4 Nisha Kumari
P.W.-5 Mankeshwar Mahto
P.W.-6 Dr. Harishchandra Prasad
P.W.-7 Dr. Dinesh Kumar Prajapati
List of Documentary Evidence
Ext.-P-1 The signature of the informant on the
written information
Ext.P-1/1 Signature of Sharda Devi
Ext.P-1/2 Signature of Birendra Kumar
Ext.-P-2 Signature of Aquil Ahmad S.I. on
formal FIR
Ext.-P-3 Endorsement by Aquil Ahmad S.I. on
the written information
Ext.-P-4 Signature of Krishnadeo Prasad on
Inquest Report
Ext.-P-5 Charge-sheet
Ext.-P-6 Photocopy of Post-mortem report with
objection
Ext.-P-7 Signature of Dr. Harishchandra Prasad
on Post-mortem report with objection
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11. The statement of the accused were recorded under
Section 313 Cr.P.C in which they pleaded innocence. The defence,
however, did not produce any oral or documentary evidence.
Findings of the learned trial court
12. After analyzing the evidences of the prosecution
witnesses and the entire materials on the record, the learned trial
court found that there is no eye-witness in this case. All the
witnesses are family members of the deceased who were not
present at the time and place of occurrence.
13. The learned trial court has noticed that the
prosecution witnesses have made vacillating statements during
investigation and in course of trial. Initially they named only two
accused persons but in course of trial they implicated five persons.
14. The learned trial court has also noticed that the
murder weapon has not been produced before the court, no
recovery memo of the weapon has been brought before the court
and it has not been shown by producing the confessional statement
leading to recovery of material object in accordance with Section
27 of the Evidence Act that the recovery of weapon of crime has
been made on the basis of the disclosure statement of the accused
Akash Kumar @ Akash Rai.
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15. The learned trial court has found that the I.O. had not
collected the blood which were present at the place of occurrence.
There is no D.N.A. report of the Forensic Science Laboratory to
show that the blood at the place of occurrence belongs to the
deceased Dharmendra Kumar.
16. It has also been found that there is no call data report
and no mobile tower location data to establish the complicity of
the accused persons in commission of the alleged murder of
Dharmendra Kumar. The case is not based on last seen theory as
no person has come forward to say that the deceased was last seen
in the company of the accused persons.
17. In the kind of materials present on the record, the
trial court has held that the prosecution witnesses are not reliable
and they are untrustworthy. Following the principles governing a
case of substantial evidence, the learned trial court has relied upon
the judgments of the Hon'ble Supreme Court in the case of
Sharad Birdhichand Sarda vs. State of Maharashtra reported
in (1984) 4 SCC 116 and State of Himachal Pradesh vs. Raj
Kumar 2018 (2) SCC 69 to take a view that in a case based on
circumstantial evidence all the circumstances taken commutitavely
form a complete chain and there should be no gap left in the chain
of evidence. The trial court found that in the present case the
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circumstances brought before the court are not consistent and there
cannot be an irresistible conclusion on the basis of the materials on
the record that the accused are guilty of commission of offence.
Submission on behalf of the informant-appellant
18. Mr. Kumar Priyaranjan, learned counsel for the
informant-appellant before this Court has assailed the impugned
judgment on various grounds. Learned counsel submits that the
learned trial court could not appreciate that the order of acquittal
cannot be passed only because there are certain defects in
investigation. The trial court was obliged to appreciate the
evidences on the record and even though the witnesses are the
family members of the deceased, their evidence cannot be
discarded on this ground alone.
19. Learned counsel has relied upon the judgments of the
Hon'ble Supreme Court in the case of Allarakha K. Mansuri v.
State of Gujarat reported in (2002) 3 SCC 57 (Pargraph '7'),
State of Gujarat v. Kishanbhai and Ors. reported in (2014) 5
SCC 108 (Paragraphs '19', '22' and '23') and in the case of
Edakkandi Dineshan v. State of Kerala reported in (2025) 3
SCC 273 (Paragraphs '26' and '27'). It is his submission that in
the case of Kishanbhai (supra), the Hon'ble Supreme Court has
made it mandatory in Paragraph '23' of the judgment that
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whenever an order of acquittal is passed, the
investigating/prosecuting officials concerned responsible for such
acquittal must necessarily be identified. It is submitted that each
erring officer must suffer consequence of his lapse by appropriate
departmental action, whenever called for.
20. It is pointed out that recently in the case of Geeta
Pandey (supra) the Hon'ble Supreme Court has referred to
Paragraph '8' of the judgment in case of Paras Yadav v. State of
Bihar reported in (1999) 2 SCC 126, wherein it has been held
inter alia that the lapse on the part of the investigating officer
should not be taken in favour of the accused and the prosecution
evidence is required to be examined dehors such omissions to find
out whether such evidence is reliable or not.
21. Learned advocate, therefore, submits that in this case
the findings of the learned trial court is required to be examined by
reappreciating the entire prosecution evidences on the record and
then this court sitting in appeal may take an appropriate view as to
whether the finding of the learned trial court is based on correct
appreciation of the materials available on the record.
Submissions on behalf of Respondent
22. On the other hand, Mr. Binod Bihari Singh, learned
Additional Public Prosecutor for the State submits that the learned
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trial court has rightly appreciated the entire materials on the
record. It is submitted that no doubt there are shortcomings and the
investigation seems to be defective. It was the I.O. who has neither
collected any scientific data such as small detail and mobile tower
location of the accused and time of occurrence nor he collected
blood lying at the place of occurrence, the investigation is failing
on certain material aspects of the matter but when this Court will
examine the judgment of acquittal, it may be found that the trial
court has gone through the deposition of each and every
prosecution witness and has considered the same before arriving at
the conclusion. The trial court has not rejected the evidence of the
prosecution wintesses on the ground that they are family members
of the deceased alone. In fact, their evidences have been found
unreliable and untrustworthy. The trial court has not committed
any error in acquitting the accused persons.
23. Learned Additional Public Prosecutor further
submits that in a case based on circumstantial evidence, it is
required to answer as to 'how', 'when', 'why' and 'where', these
are the important aspects which would be required to be answered
by the prosecution. The principles governing the case of
circumstantial evidence may be found in the judgment of the
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Hon'ble Supreme Court in the case of Sharad Birdhichand
Sarda (supra).
24. As regards the statement of learned counsel for the
appellant that I.O. has not done his part of the job in collecting the
evidences and collating the same with the other circumstances
appearing in course of investigation, learned Additional Public
Prosecutor would submit that in that regard this Court may take
appropriate view of the matter keeping in view the judgment of the
Hon'ble Supreme Court.
Consideration
25. We have considered the submissions of learned
counsel for the appellant and learned Additional Public Prosecutor
for the State. We have also gone through the evidences available
on the record and the findings recorded by the learned trial court.
26. On a close perusal of the records, we find that when
the written information was submitted to police by the informant
Mahesh Kumar (P.W.-2), he only informed that on 15.08.2020 at
about 06:30 P.M.-07:00 P.M., his son Dharmendra Kumar (the
deceased) got a call on his mobile number 9304341030, whereafter
he left the house saying that he will return in some time but
thereafter at about 09:30 P.M. he came to know from some persons
that Dharmendra Kumar has been shot dead by some unknown
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criminals near Bajrangbali Temple in Manpur village besides
Bypass road. The informant states that he left his house and
reached Sadar Hospital Chapra, where he came to know that his
son was shot dead by some unknown criminals. The post-mortem
was conducted in the hospital and thereafter he came to the police
station.
27. It is evident from the written information which is
the basis of the FIR that it has been submitted in the police station
after more than 12 hours of the knowledge on the part of the
informant with regard to the murder of his son. He came to know
about the occurrence at 09:30 P.M. itself on 15.09.2020 and the
family members of the deceased were present at the time of
preparation of the inquest report and they were present during
post-mortem but no statement was made before police by way of
fardbeyan. A written application was submitted after 12 hours of
the occurrence on the next day at about 11:30 A.M. and till that
time the informant did not raise any suspicion against the accused
persons. The informant did not disclose that his son had informed
about the person who had given him the call and/or where his son
had gone in the evening at 06:30 P.M.-07:00 P.M. after receiving
the phone call.
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28. This Court finds that the informant has been
examined as P.W.-2 in this case. In course of trial, he has stated
that his son told him that Akash Kumar had called his son on
mobile whereafter he had left. P.W.-2 has stated that his son told
him that the deceased had gone with Ranjan and Akash and three
persons Raju Paswan, Rajesh Shah and Suraj Mahto of village
Anantpur. This is what the trial court has noticed in its finding that
initially the informant took name of two persons at the stage of his
statement under Section 161 Cr.P.C. but in course of trial he added
three more names. This has been taken as inconsistent and
untrustworthy statement of P.W.-2 and we find no fault in
appreciation of the evidence on the part of the learned trial court.
29. We have noticed that in Paragraph '7' of his
deposition, P.W.-2 has stated that his statement was recorded twice
before the police. The defence invited his attention towards his
previous statements made before police in which he had not stated
that Akash Kumar had called his son and his son has said that he
had gone with Ranjan and Akash and three other persons of village
Anantpur. In Paragraph '5' of his deposition, he has stated that he
is not aware that from which mobile number call had come on the
mobile number of his son. We find that in his deposition in course
of trial he has stated that his statement was recorded twice by
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police. Those two statements before police has not been brought
on record.
30. We have further noticed that P.W.-1 Birendra Kumar
is the brother of the deceased who has stated that his brother had
received a phone call and that phone call was of Akash. He had
said that Ranjan, Raju, Rajesh and Suraj who were with Akash
were calling him. This witness has stated that his father was
nervous, so at the time of lodging of the FIR he had not given the
name of the accused persons. He has stated that he cannot
remember the mobile number on which Dharmendra had received
the call. His attention was also drawn towards his previous
statement in which he had not stated that Akash had given call to
his brother.
31. Sharda Devi (P.W.-3) is the mother of the deceased.
She has also made a parrot like statement on line with P.W.-1 and
P.W.-2. She has stated that when her husband had lodged the case
she had also gone to the police station. She had received
information at her home but she cannot say the name of the person
who had informed. In Paragraph '8' of her deposition she has
stated that she had gone with her husband to the P.S. to lodge the
case and she was present with him. On the said statement all the
persons had put their signature. Whereafter police had come for
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investigation at her house. From the deposition of P.W.-3 it appears
that the statement of the informant was recorded by police on
which he and P.W.-3 had also put her signature. But this recorded
statement of the informant has not been brought on record in
course of investigation and trial.
32. Nisha Kumari (P.W.4) is the sister of the deceased
who has deposed that a friend of her brother had given a telephone
call whereafter he had left the house. She has stated that at 9:00
P.M.-9.30 P.M. a person from the village came and informed the
family of this witness that Dharmendra had suffered firearm injury,
whereafter this witness along with her another brother and parents
had gone near Manpur Temple but that was a lonely place and
nothing was there. Thereafter she had gone to the police station.
She has stated in her cross-examination that she does not
remember the boundary of the place of occurrence. The defence
examined her also with respect to the cases pending against the
deceased. This witness has stated that she is not aware of the
number of cases which are going on against her brother but she has
stated that there were cases. It is evident from the deposition of
P.W.4 that when she reached at the place of occurrence, she had
not found any sign of murder. The place was lonely and there was
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nothing. She has not stated about presence of blood near Manpur
Temple.
33. Mankeshwar Mahto (P.W.5) is the Investigating
Officer of this case who has stated that the information with
respect to the occurrence was received in the Police Station on
16.08.2021
at 11.30 A.M. On that basis, FIR was registered and he
had taken over charge of the investigation. He has stated that he
had prepared the inquest report and recorded the restatement of the
informant. He has stated that he has inspected the place of
occurrence which is situated at the distance of 1 kilometre long
from the Police Station. He has given the description of the place
of occurrence. He had found the blood at the place of occurrence.
He had not collected the same. On a reading of the evidence of the
I.O., it is crystal clear that he is not coming out with correct
statement. It would appear from the inquest report on which the
signature of Krishnadeo Prasad has been proved that the inquest
report was prepared on 16.08.2020 at 06:00 P.M. The place where
the inquest report was prepared is falling within the jurisdiction of
Sonepur Police Station. Krishnadeo Prasad has however, not been
examined in course of trial. It further appears that in this case
certified copy of the post-mortem report was brought on record but
when Dr. Harishchandra Prasad (P.W.6) who is said to have
Patna High Court CR. APP (DB) No.1432 of 2024 dt.02-05-2025
conducted the post-mortem on the dead body of Dharmendra
Kumar came to depose, he said that he had not put his signature on
the post-mortem report and it was not his signature. He has stated
that he is suffering from alzheimer disease and he forgets many
other things. The trial court has observed that the court was unable
to understand and judge this witness. In his cross-examination, he
has stated that he is suffering from the disease for last five years
but he is not getting any treatment for the same. He has stated that
post-mortem report was written by his staff. Dr. Dinesh Kumar
Prajapati (P.W.-7) who was posted on the post of Pharmacist in the
Chapra Sadar Hospital has proved the handwriting and signature of
the doctor Harish Chandra Prasad (P.W.6). The said post-mortem
report has been certified by the Deputy Superintendent, Sadar
Hospital and the attested xerox copy of the post-mortem report has
been proved as Ext.-P/6 (with objection). In his cross-examination,
P.W.7 has stated that he was looking at the post-mortem report for
the first time in the court and he cannot say that where the xerox
copy was prepared.
34. In the aforementioned background of the evidences
available on the record, the learned trial court has recorded its
finding in paragraph ' 41' of the judgment in Sessions Trial No.
Patna High Court CR. APP (DB) No.1432 of 2024 dt.02-05-2025
180 of 2021 (paragraph '40' of Sessions Trial No. 364 of 2022)
which reads as under:-
"41. On the basis of materials available on record the
Court comes to the conclusion that none of the
ingredient of offence u/s 302/34 IPC and 27 Arms Act
stand fulfilled. There is no eye witness in this case. All
the witnesses are family members who were no present
at the time and place of alleged murder of Dharmendra
Kumar. The FIR was lodged against unknown. In an
after thought exercise the Pws named the accused
persons varying from two in S/161 Cr.P.C. to five in
their depositions before the Court. The persons who told
that the accused persons murdered Dharmendra Kumar
was not produced before the Court. The Inquest Report
was not duly proved in the absence of examination of
Krishna Deo Prasad the Police Jamadar who prepared it.
The PM Report is also not proved in the absence of
expert. Even if the PM Report is taken into
consideration it does not discloses who fired at the
deceased Dharmendra Kumar. Daring appreciation of
evidence the PWs have been found to be unreliable and
untrustworthy. The murder weapon was not produced
before the Court and there is no recovery produced
before the Court in furtherance of the confessional
statement of accused Akash Kumar. The prosecution
failed to bring on record the FSL report to show that the
blood at the PO belonged to the deceased Dharmendra
Kumar. There is no CDR data, no mobile tower loction
data brought on record to establish the complicity of
accused persons in commission of the alleged murder of
Dharmendra Kumar. Neither the mobile of deceased nor
of the accused was produced by the prosecution as
evidence in this case and to link the conversation
between them. There is no last seen together theory
applicable in this case as no person has come forward to
say that the deceased was last seen in the company of
accused persons. Even considering from the angle of
circumstantial evidence, the chain stood not completed.
There was no motive proved by the prosecution. The
prosecution was obliged to prove by cogent and reliable
piece of evidence the confessional statement of the
accused Akash Kumar which the prosecution could not.
The Court therefore concludes that other than
Patna High Court CR. APP (DB) No.1432 of 2024 dt.02-05-2025
confessional statement of accused Akash Kumar there is
nothing on record to prove the guilt of the accused
persons in this case. Conviction merely on the basis of
confessional statement of one of the accused is not
sustainable."
35. Having analyzed the entire evidence on the record
once again, we find that the learned trial court has not committed
any error in appreciation of the evidence.
36. As regards the principles governing cases of
circumstantial evidence, in case of Sharad Birdhichand Sarda
(supra), the Hon'ble Constitution Bench of the Supreme Court has
held in paragraph '152' as under:-
152. 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 Pradesh1. 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 (Alias)
Simmi v. State of Uttar Pradesh17 and Ramgopal v. State of
Maharashtra18. It may be useful to extract what Mahajan, J.
has laid down in Hanumant case1:
"It is well to remember that in cases where the evidence is of
a circumstantial nature, the circumstances from which the
conclusion of guilt if to be drawn should in the first instance
be fully established, and 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."
1. 1952 SCR 1091 : AIR 1952 SC 343 : 1953 Cri LJ 129
17. (1969) 3 SCC 198 : 1970 SCC (Cri) 55
18. AIR 1972 SC 656 : (1972) 4 SCC 625
Patna High Court CR. APP (DB) No.1432 of 2024 dt.02-05-2025
37. It is evident on a close scrutiny of the entire
materials on the record that the prosecution in this case has not
even proved the motive of the occurrence. The manner of
occurrence has also not been proved in this case. In fact, there is
no material on the record to connect the accused persons with the
occurrence in question. At the same time, we do agree with
submission of learned counsel for the appellant that in this case
during investigation, the I.O. has not done its duty properly and
even the basic requirements which are expected from a Police
Officer investigating the case, has not been followed. The murder
has taken place within jurisdiction of Sonepur Police Station. The
inquest report was prepared on 15.08.2020 at 6.30 P.M. but no
F.I.R. was registered and the police kept on waiting for a written
application till next day and what happened during this period
from 15.08.2020 till next day is not known. In a case of murder
delay of more than 12 hours in registering of the F.I.R. itself
creates doubt over the authenticity of the story particularly when
some of the names which were known to the informant were not
disclosed in the F.I.R. The I.O. did not collect the blood sample
and sent it to the F.S.L. The doctor did not depose properly and the
I.O. when came to depose has made a statement that information
regarding the occurrence was received in the Police Station on
Patna High Court CR. APP (DB) No.1432 of 2024 dt.02-05-2025
16.08.2020 at 11:30 A.M. which cannot be said to be a correct
statement for the reason that on the previous day itself the inquest
report and post-mortem had already taken place. The conduct of
the I.O., the Doctor and the prosecuting officers prima-facie lack
bonafide and it would be required to be reviewed/examined in
accordance with law.
38. For the aforementioned reasons, following the
dictum of the Hon'ble Supreme Court in the case of State of
Gujarat v. Kishanbhai and Ors., we direct the Department of
Home, Govt. of Bihar to conduct an enquiry with regard to the
officials such as the I.O., the Doctor and the conduct of
Prosecution in this case and identify as to whether the failure on
the part of these officials were designedly for the purpose of
helping the accused. We record the directions and observations of
the Hon'ble Supreme Court in paragraph '23' of the judgment in
case of Kishanbhai (supra) hereunder:-
"23. On the culmination of a criminal case in acquittal,
the investigating/prosecuting official(s) concerned
responsible for such acquittal must necessarily be
identified. A finding needs to be recorded in each case,
whether the lapse was innocent or blameworthy. Each
erring officer must suffer the consequences of his lapse,
by appropriate departmental action, whenever called for.
Taking into consideration the seriousness of the matter,
the official concerned may be withdrawn from
investigative responsibilities, permanently or
temporarily, depending purely on his culpability. We
also feel compelled to require the adoption of some
indispensable measures, which may reduce the malady
Patna High Court CR. APP (DB) No.1432 of 2024 dt.02-05-2025
suffered by parties on both sides of criminal litigation.
Accordingly, we direct the Home Department of every
State Government to formulate a procedure for taking
action against all erring investigating/prosecuting
officials/officers. All such erring officials/officers
identified, as responsible for failure of a prosecution
case, on account of sheer negligence or because of
culpable lapses, must suffer departmental action. The
above mechanism formulated would infuse seriousness
in the performance of investigating and prosecuting
duties, and would ensure that investigation and
prosecution are purposeful and decisive. The instant
direction shall also be given effect to within 6 months."
39. We also reproduce the observations of the Hon'ble
Supreme Court in case of Edakkandi Dineshan (supra) in
paragraph '26' hereinbelow:-
26. A cumulative reading of the entire evidence on
record suggests that the investigation has not taken
place in a proper and disciplined manner. There are
various areas where a proper investigation could have
strengthened its case. In Paras Yadav v. State of Bihar8,
the Supreme Court observed as under : (SCC p. 130,
para 8)
"8. ... the lapse on the part of the investigating officer
should not be taken in favour of the accused. It may be
that such lapse is committed designedly or because of
negligence. Hence, the prosecution evidence is required
to be examined dehors such omissions to find out
whether the said evidence is reliable or not. For this
purpose, it would be worthwhile to quote the following
observations of this Court from Ram Bihari Yadav v.
State of Bihar9: (SCC pp. 523-24, para 13)
'13. ... In such cases, the story of the prosecution will
have to be examined dehors such omissions and
contaminated conduct of the officials otherwise the
mischief which was deliberately done would be
perpetuated and justice would be denied to the
complainant party and this would obviously shake the
confidence of the people not merely in the law-
enforcing agency but also in the administration of
justice.' "
8. (1999) 2 SCC 126 : 1999 SCC (Cri) 104
9. (1998) 4 SCC 517 : 1998 SCC (Cri) 1085
Patna High Court CR. APP (DB) No.1432 of 2024 dt.02-05-2025
40. For the reasons stated hereinabove, although we find
that upon appreciation of the materials on the record no case for
interference is made out, we are of the considered opinion that the
responsibility of the erring officials must be fixed by the
Department of Home within a reasonable period by independently
examining their role, whether it was designedly or negligently?
41. This Court is of the view that now time has come
when the directions and observations of the Hon'ble Supreme
Court given a decade back in paragraphs '19', '22' and '23' of the
judgment are required to be followed in it's terms and spirit by the
Department of Home. Whenver any acquittal takes place, role of
the investigating officers/prosecution, etc. are required to be
reviewed at appropriate level.
42. The reason(s) for failure of the prosecution must
surface and adequate departmental action be taken against the
erring officials, if their conduct is found blameworthy. In this case,
review be done within four months from the date of
receipt/communication of a copy of the judgment. Such review
shall be independent, uninfluenced and in accordance with law.
The informant will be at liberty to pursue the matter with the
Department.
Patna High Court CR. APP (DB) No.1432 of 2024 dt.02-05-2025
43. For the reasons stated hereinabove, these appeals
stand disposed of with the aforementioned observations and
directions but without interfering the judgments of acquittal.
44. A copy of this judgment be sent to the Department
of Home, Government of Bihar, immediately.
(Rajeev Ranjan Prasad, J)
(Ashok Kumar Pandey, J)
durgesh/-
AFR/NAFR
CAV DATE
Uploading Date 07.05.2025
Transmission Date 07.05.2025
