[Cites 24, Cited by 0]
Patna High Court
Kara Paswan vs The State Of Bihar on 27 February, 2026
Author: Anshuman
Bench: Anshuman
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.684 of 2018
Arising Out of PS. Case No.-140 Year-2004 Thana- NOORSARAI District- Nalanda
======================================================
1. Adalat Paswan, Son of Late Bhagwat Paswan, Resident of Village- Kakriya
P.S.- Noorsarai, District- Nalanda.
2. S.B. Paswan, Son of Sheo Dayal Paswan, Resident of Village Ibrahimpur,
P.S. Noorsarai, District- Nalanda.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 630 of 2018
Arising Out of PS. Case No.-140 Year-2004 Thana- NOORSARAI District- Nalanda
======================================================
Kara Paswan S/o Sheo Dayal Paswan, R/o Vill.- Ibrahimpur, P.S.- Case-
Noorsarai, Distt.- Nalanda.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 684 of 2018)
For the Appellant/s : Mr. Rama Kant Sharma, Sr. Advocate
Mr. Pramod Kumar Sinha, Advocate
For the Respondent/s : Mr. Dilip Kumar Sinha, APP
(In CRIMINAL APPEAL (DB) No. 630 of 2018)
Patna High Court CR. APP (DB) No.684 of 2018 dt.27-02-2026
2/29
For the Appellant/s : Mr. Rama Kant Sharma, Sr. Advocate
Mr. Arun Kumar, Advocate
Mr. Raghubir Chandrayan, Advocate
Mr. Satyam Kumar, Advocate
Mr. Pramod Kumar Sinha, Advocate
For the Respondent/s : Mr. Sujit Kumar Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
and
HONOURABLE MR. JUSTICE DR. ANSHUMAN
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI)
Date : 27-02-2026
1. This criminal appeal under Section 374 (2) of the
Code of Criminal Procedure, 1973, arises from the judgment
of conviction, dated 23rd of April, 2018 and order of sentence,
dated 26th of April 2018, passed by the learned Presiding
Officer, Fast Track Court-I, Nalanda at Bihar Sharif in
Sessions Trial No. 573 of 2006, arising out of Noorsarai
Police Station Case No. 140 of 2004. By the impugned
judgment, the learned trial court convicted the appellants
Adalat Paswan, Kara Paswan and S. B. Paswan under Section
302 read with Section 34 of the Indian Penal Code, 1860 and
sentenced each of them to rigorous imprisonment for life
together with a fine of Rs.10,000/-, in default whereof to
undergo further rigorous imprisonment for two years. One of
Patna High Court CR. APP (DB) No.684 of 2018 dt.27-02-2026
the original accused, Durgi Paswan, died during the trial and
the proceedings against him abated. Another accused,
Shivdayal Paswan, passed away during the pendency of this
appeal. The appellants were taken into judicial custody
immediately after their conviction and have remained in
custody since, except for the period when they were on bail
during trial.
2. The prosecution case, as disclosed in the
fardbeyan of Kamla Devi (PW-5) recorded on 17th of October,
2004 at about 10:45 a.m. by S.I., Shashi Shekhar at the place
of occurrence, is that her youngest son Buddhu Paswan had
returned from Delhi on the evening of 16 th of October, 2004.
On the next morning, i.e., on 17th of October 2004, at about
08:00 a.m., Buddhu left his home, saying that he would return
after sitting at the village Panchayat Bhawan and asked his
family that in the meantime they prepare breakfast. According
to the informant, as soon as her son sat at the Panchayat
Bhawan, five accused persons: Durgi Paswan, S.B. Paswan,
Kara Paswan, Shivdayal Paswan and Adalat Paswan, all
armed with pistols, coming from the west, approached him.
Seeing them, Buddhu tried to flee but was caught near the
Panchayat Bhawan and shot repeatedly, receiving three to four
Patna High Court CR. APP (DB) No.684 of 2018 dt.27-02-2026
bullets in the head and chest, resulting in his instantaneous
death. The accused then fled. The informant claimed that she
herself witnessed the occurrence and that her daughter-in-law
Dhanmanti Devi (PW-3) and one Makho Devi (PW 3's
maternal uncle's wife) also saw the accused fleeing from the
place of occurrence. The motive was stated to be long-
standing enmity between the two families.
3. On the basis of the fardbeyan, Noorsarai P.S.
Case No. 140 of 2004 was registered under Sections 302/34
IPC and Section 27 of the Arms Act. After investigation, a
charge-sheet was submitted. The case was committed to the
Court of Sessions. Charges were framed on 31st of August,
2006. The accused pleaded not guilty and claimed to be tried.
4. The prosecution examined seven witnesses. PW-1
Raj Kishore Prasad and PW-2 Tyagi Paswan were formal
inquest witnesses. PW-3 Dhanmanti Devi is the wife of the
deceased. PW-4 Dr. Ramanand Prasad Singh conducted the
post-mortem examination. PW-5 Kamla Devi is the informant
and claimed to be an eyewitness. PW-6 Manish Ranjan proved
the FIR and fardbeyan. PW-7 Hemant Kumar is the
Investigating Officer. The defence tendered certified copies of
certain counter-cases involving the informant's family but did
Patna High Court CR. APP (DB) No.684 of 2018 dt.27-02-2026
not exhibit them. The accused, in their statements, recorded
under Section 313 Cr.P.C., denied the allegations and claimed
innocence.
5. The learned trial court convicted the three
surviving appellants, primarily relying upon the testimony of
PW-5, which it found reliable because the defence had not
specifically challenged the core allegation of shooting during
cross-examination. The evidence of PW-3 was treated as
corroborative of the fleeing of the accused and the medical
evidence of PW-4 was held to support the prosecution version
of close-range firearm injuries. Enmity was acknowledged but
treated only as motive and not as a ground for false
implication.
6. Mr. Rama Kant Sharma, learned Senior Advocate
appearing on behalf of the appellants has assailed the
judgment on multiple grounds. He submits that the entire
prosecution case rests on the interested testimony of two
closely related witnesses: the mother and the wife of the
deceased, without any independent corroboration. He
highlights material contradictions between their depositions,
particularly PW-3's admission that the accused had covered
their faces with cloth, which destroys the claim of clear
Patna High Court CR. APP (DB) No.684 of 2018 dt.27-02-2026
identification by PW-5. He also pointed out the highly
unnatural conduct of PW-5, who claimed to have been sitting
with her son; saw the accused approaching the deceased with
arms; but neither raised an alarm nor intervened physically.
7. Mr. Sharma further draws attention of the Court
to the glaring discrepancy in the place of occurrence. While
PW-5 in her deposition as well as in her fardbeyan asserted
that the deceased was shot and died right near the veranda of
the Panchayat Bhawan with blood spilled on the floor, the
Investigating Officer (PW-7) categorically stated that the body
was found in the adjacent fallow land and that not a single
drop of blood or any other mark was noticed at the spot. He
emphasises the complete absence of recovery of weapons,
empty cartridges or blood-stained earth, and the failure to
examine any independent villager despite the occurrence
having allegedly taken place at a public place in broad
daylight.
8. The learned Additional Public Prosecutor
supports the judgment, contending that the testimony of PW-5
is consistent with the fardbeyan and is duly corroborated by
the medical evidence. He submits that the defence failed to
impeach the core allegation during cross-examination and that
Patna High Court CR. APP (DB) No.684 of 2018 dt.27-02-2026
minor discrepancies are natural after a lapse of years.
9. We have carefully perused the entire lower court
records, the impugned judgment, the memo of appeal and the
evidence on record. We have heard learned counsel for both
sides at length.
10. We now proceed to analyse the evidence of each
witness in the light of settled principles of law.
11. The fardbeyan of PW-5 is prompt and she
named all the five accused with specific parentage. However,
it claims that all the people of the village saw the occurrence,
yet no independent villager was examined. In Gopal Krishnaji
Ketkar v. Mohamed Haji Latif, reported in 1968 SCC OnLine
SC 63, the Hon'ble Supreme Court held that where the best
evidence is withheld, an adverse inference under Section
114(g) of the Evidence Act is permissible. The Hon'ble
Supreme Court in paragraph 5 of the aforesaid judgement has
observed as hereunder:
"5. On behalf of the appellant
reference was made to the Area Book, Ex.
66 of the year 1890. The entry shows the
name of Laxmibal widow of Govind
Gopal Ketkar under the heading "bl eps
ukao" (name of the person). Exhibit 67 is
the entry from the Phalani Book for the
Patna High Court CR. APP (DB) No.684 of 2018 dt.27-02-2026
year 1897 and shows the land as
"Kilyacha Dongar" and under the column
"bl eps ukao" is shown the name of
Laxmibai widow of Govind Gopal,
Exhibit 68 is of the same year from the
revision Phalani containing similar entry
with the map attached. In Exhibit 70 the
name of Laxmibai is shown as
"Khatedar" for the year 1906. In the
remarks column there is an entry "one
built well, one pakka built masjid, one
Dargah, one tomb". Exhibit 71 is an entry
for the year 1915 from Akar Phod Potrok
and in the column of "Kabjedar the name
of Rukminibai Hari appears with regard
to Plot 134 Thereafter, in the record of
rights for the year 1913. Exhibit. 76, the
name of the predecessor of the appellant
is shown. On the basis of these entries it
was submitted by Mr Gokhale that the
ownership of the Plot was with the
appellant and not with the Dargah. But
there are important circumstances in this
case which indicate that the appellant is
not the owner of Survey Plot No. 134.
Exhibits 64 and 65 are significant in this
connection. Exhibit 64 is an entry from
the "Sud" in Marathi for the year 1858 in
(Revisional Survey Number). The original
Patna High Court CR. APP (DB) No.684 of 2018 dt.27-02-2026
survey number of this Plot was 24 and it
was known as "Kilyacha Dongar". The
total area is shown to be 249 acres and
24 gunthas. It is shown as "Khalsa" land.
Kharaba is shown as 89 acres 24 gunthas
and the balance of the area is shown as
160 acres. In the last column the name of
the cultivator is not mentioned but it is
shown as "Khapachi". It is significant
that the name of the Ketkar family is
absent from this record. No convincing
reason was furnished on behalf of the
appellant to show why his name was not
entered in the "Sud". It is also important
to notice that the appellant has furnished
no documentary evidence to show how his
family acquired title to the land from the
earliest time; there is no sanad or grant
produced by the appellant to show that he
had acquired title to the land. It further
appears that the appellant's family did
not assert any title to the land at the time
of the survey made in 1858: otherwise
there is no reason why its name was not
entered in the "Sud" of the year 1858. It is
true that there are a number of entries
subsequent to the year 1890 and 1897 in
which the Ketkar family is shown as the
"Khatedar or the occupant but these
entries are not of much significance since
Patna High Court CR. APP (DB) No.684 of 2018 dt.27-02-2026
the Ketkar family was in the fiduciary
position of a manager of the Dargah and
was lawfully in possession of Survey Plot
No: 134 in that capacity. There is also
another important circumstance that the
appellant has no lands of his own near
Plot No. 134 and the nearest lands he
owns are in Bandhanwadi which are
admittedly 3. % to 4 miles away from the
top of the hill. There is also the important
admission made by the appellant in the
course of his evidence that there are 2 or
3 tombs behind the Musaferkhana. He
stated further that there is no cemetery or
burial ground in Survey No. 134". But
this evidence is in direct conflict with the
statement of the appellant in the previous
case that "Round about the Dargah many
people die every year.... Anyone that died
there, whether Hindu, Muslim or Parsee
if he has no heirs is buried there". He
also conceded that there is one public
tank known as "Chasmyachi Vihir near
the Dargah and there are 5 wells near the
Dargah and five boundaries "Aranas"
about one mile from the Dargah. Lastly,
reference should be made to the
important circumstance that the appellant
has not produced the account of the
Dargah income. In the course of his
Patna High Court CR. APP (DB) No.684 of 2018 dt.27-02-2026
evidence the appellant admitted that he
but he did not produce any accounts to
substantiate his contention. He also
admitted that "he had got record of the
Dargah income and that account was
kept separately". But the appellant has
not produced either his own accounts or
the account of the Dargah to show as to
how the income from Plot No. 134 was
dealt with. Mr Gokhale, however, argued
that it was no part of the appellant's duty
to produce the accounts unless he was
called upon to do so and the onus was
upon the respondents to prove the case
and to show that the Dargah was the
owner of Plot No. 134. We are unable to
accept this argument as correct. Even if
the burden of proof does not lie on a party
the Court may draw an adverse Inference
if he withholds important documents in
his possession which can throw light on
the facts at issue. It is not, in our opinion,
a sound practice for those desiring to rely
upon a certain state of facts to withhold
from the Court the best evidence which is
in their possession which could throw
light upon the issues in controversy and
to rely upon the abstract doctrine of onus
of proof, in Murugesam Pillai v.
Patna High Court CR. APP (DB) No.684 of 2018 dt.27-02-2026
Manickavasaka Pandara Lord Shaw
observed as follows:
"A practice has grown up in
Indian procedure of those in possession of
important documents or information lying
by, trusting to the abstract doctrine of the
onus of proof, and failing, accordingly, to
furnish to the Courts the best material for
its decision. With regard to third parties,
this may be right enough they have no
responsibility for the conduct of the suit,
but with regard to the parties to the suit it
is, in Their Lordships' opinion, an
inversion of sound practice for those
desiring to rely upon a certain state of
facts to withhold from the Court the
written evidence in their possession
which would throw light upon the
proposition"
This passage was cited with
approval by this Court in a recent
decision- Biltu Ram v. Jainandan Prasad.
In that case, reliance was placed on
behalf of the defendants upon the
following passage from the decision of
the Judicial Committee in Bilas Kunwar
v. Desraj Ranjit Singh:
"But it is open to a litigant to
refrain from producing any documents
that he considers irrelevant; if the other
Patna High Court CR. APP (DB) No.684 of 2018 dt.27-02-2026
litigant is dissatisfied it is for him to
apply for an affidavit of documents and
he can obtain inspection and production
of all that appears to him in such affidavit
to be relevant and proper. If he fails so to
do, neither he nor the Court at his
suggestion is entitled to draw any
inference as to the contents of any such
documents."
But Shah, J., speaking for the
Court, stated:
"The observations of the
judicial Committee do not support the
proposition that unless a party is called
upon expressly to make an affidavit of
documents and inspection and production
of documents is demanded, the Court
cannot raise an adverse inference against
a party withholding evidence in his
possession. Such a rule is inconsistent
with Illustration (g) of Section 114 of the
Evidence Act, and also an impressive
body of authority."
12. The fardbeyan also asserts that the deceased was
shot near the Panchayat Bhawan on the west side and died on
the spot. This assertion is directly contradicted by the
evidence of the Investigating Officer.
13. PW-1 Raj Kishore Prasad and PW-2 Tyagi
Patna High Court CR. APP (DB) No.684 of 2018 dt.27-02-2026
Paswan are formal inquest witnesses. PW-1 admitted in his
cross-examination that the Inspector did not inspect the body
in his presence and that he signed a pre-written paper without
knowing its contents. PW-2 was declared hostile.
14. PW-3 Dhanmanti Devi, wife of the deceased,
deposed that she heard gunshots; ran to the spot with Makho
Devi; and saw the accused fleeing west with pistols. In cross-
examination, she admitted that the accused were wearing cloth
over their faces and that she came to know the names from her
mother-in-law. She was not an eyewitness to the shooting.
This admission of face-covering creates a direct contradiction
with PW-5's claim of clear identification.
15. The Hon'ble Supreme Court has addressed
material contradictions in witness depositions regarding the
identification of the accused in several judgments, particularly
where inconsistencies arise on whether the accused's face was
visible or covered (e.g., by masks), rendering the
identification unreliable and entitling the accused to the
benefit of doubt. Such contradictions, if they strike at the core
of the prosecution's case by creating reasonable doubt on the
perpetrator's identity, are fatal and go to the root of the matter.
A key case aligning closely with the present facts is Govind
Patna High Court CR. APP (DB) No.684 of 2018 dt.27-02-2026
Mandavi v. State of Chhattisgarh, reported in 2025 INSC
1399. The relevant portions of the said judgment, elucidating
the facts and law are as follows:
"7. Heeralal Hidko (PW-1)
submitted a merg intimation6 (oral
report) to the SHO, Police Station
Bhanupratappur, District Kanker,
Chhattisgarh, on 18th April, 2021, at
about 7:25 a.m., alleging inter alia: -
"I am a Native resident of
Village Iragaon, Durgupara, I work in
Farming sector. Like every day routine,
on 17/04/2021, my son Bivan and
daughter-in-law Sukmai Hidko both (sic)
were sleeping inside the Farm hut around
11:30 my daughter-in-law Sukmai came
home and told me that "2 unknown
masked persons came at around 11:00
one of whom was tall and another was
short-heighted and thin and held sickle In
his hand. They called and woke up my
husband Bivan and took him away from
the farm hut, I followed them and stood
on the door. After a while, my husband
screamed "Aye Daayi! O Daayii" I got
scared and ran away." As soon as I got
this news, I took Sahdev Kadiyam, Kushal
Kawde and Dhannaram Anchala, and
others with me to my field and in the light
Patna High Court CR. APP (DB) No.684 of 2018 dt.27-02-2026
of my torch, I found my son Bivan lying
dead, soaked in blood. My son is dead,
some unknown person has killed my son
with a sharp weapon. Due to the midnight
and it being a forest area, I took care of
the dead body of my son, and in the
morning, I came here to report."
8. On the basis of the aforesaid
statement, First Information Report7 No.
106 of 2021, dated 18th April, 2021,
came to be registered at the Police
Station for the offence punishable under
Sections 302/34 IPC against unknown
assailants.
9. Evidently, a perusal of the
FIR (Exh. P/2) makes it clear that the
informant Heeralal Hidko (PW-1) was
not an eyewitness to the incident; rather,
his knowledge of the occurrence was
entirely based on the information
furnished to him by Smt. Sukmai Hidko
(PW-2), his daughter-in-law and wife of
the deceased Bivan Hidko.
10. The statement of Smt.
Sukmai Hidko (PW-2), wife of the
deceased and daughter-in-law of
Heeralal Hidko (PW-1), under Section
161 of the Code of Criminal Procedure,
19738 came to be recorded on 21st April,
2021, i.e., after four days of the incident
Patna High Court CR. APP (DB) No.684 of 2018 dt.27-02-2026
and at that point of time, for the first time,
it was alleged by the lady that during the
assault being made on her husband, the
mask of one of the assailants came off
and thus, she was able to identify the said
assailant as being the appellant-Govind
Mandavi.
...
39. Analysis of these facts leads
to the irrefutable conclusion that the two
star prosecution witnesses (PW-1 and
PW-2) have attempted to modulate and
improve their versions while deposing on
oath. Their testimonies are full of
embellishments and contradictions.
...
45. Hence, we are of the firm
view that the omission of the names of the
accused in the FIR (Exh. P/2), which was
lodged on the basis of the information
provided by Smt. Sukmai Hidko (PW-2) to
Heeralal Hidko (PW-1) is fatal as it goes
to the very root of the matter. The said
omission completely impeaches the
credibility of the prosecution's case."
16. PW-4 Dr. Ramanand Prasad Singh proved the
post-mortem report. He found multiple lacerated firearm
wounds with charring on the entry wounds, indicating short-
range firing, and recovered two bullets from the body. While
Patna High Court CR. APP (DB) No.684 of 2018 dt.27-02-2026
this evidence establishes homicidal death by firearm, it does
not connect any of the appellants to the crime.
17. In Surendra Koli v. State of Uttar Pradesh,
reported in 2025 INSC 1308, the Hon'ble Supreme Court
reiterated that medical evidence can prove the nature of
injuries but cannot prove the authorship of the crime in the
absence of reliable ocular or forensic link. The relevant
paragraph of the said judgment is reproduced hereinbelow:
"13. The forensic analysis
reinforces that conclusion. Extensive
searches of D-5 by expert teams did not
yield human bloodstains, remains, or
transfer patterns consistent with multiple
homicides and dismemberment inside the
house. The DNA work undertaken by the
Centre for DNA Fingerprinting and
Diagnostics in Hyderabad linked certain
remains to families of missing persons.
That science aided only identification. It
did not prove authorship of homicide by
the petitioner within D-5. Knives and an
axe were exhibited without proof of blood,
tissue, or hair consistent with use in the
alleged crimes. There was no credible
chain of custody or expert testimony
establishing that a domestic help with no
medical training could perform the
Patna High Court CR. APP (DB) No.684 of 2018 dt.27-02-2026
precise dismemberment described. These
gaps were central to the acquittals in the
twelve cases. They are equally present
here."
18. PW-5 Kamla Devi is the star witness of the
prosecution. She claims to have been sitting with her son at
the Panchayat Bhawan; to have seen the five-armed accused
approaching from the west; to have seen her son being caught
and shot four times near the veranda; and to have seen blood
on the floor and on her own sari. Yet in cross-examination, she
admitted that she was not afraid; did not run away; did not
stand between the assailants and her son except for a feeble
protest; and that she held her son's head but did not fall on his
body. This conduct is wholly unnatural for a mother
witnessing the murder of her son.
19. In Shivasharanappa & Ors. v. State of
Karnataka, reported in (2013) 5 SCC 705, the Hon'ble
Supreme Court held that unnatural conduct of witnesses
creates serious doubt on their presence and reliability. The
relevant paragraph of the judgment is reproduced
hereinbelow:
"22. Thus, the behaviour of the
witnesses or their reactions would differ
from situation to situation and individual
Patna High Court CR. APP (DB) No.684 of 2018 dt.27-02-2026
to individual. Expectation of uniformity in
the reaction of witnesses would be
unrealistic but the court cannot be
oblivious of the fact that even taking into
account the unpredictability of human
conduct and lack of uniformity in human
reaction, whether in the circumstances of
the case, the behaviour is acceptably
natural allowing the variations. If the
behaviour is absolutely unnatural, the
testimony of the witness may not deserve
credence and acceptance."
20. PW-5 also feigned ignorance of multiple
criminal cases against her family members, which the defence
had brought on record. In Aslam @ Imran v. State of Madhya
Pradesh, reported in 2025 SCC OnLine SC 670, the Hon'ble
Supreme Court observed that in cases of deep-rooted enmity,
the possibility of false implication cannot be ruled out and the
evidence of interested witnesses must be subjected to
heightened scrutiny.
21. The case related to the deceased Guddu, who
was a history-sheeter with multiple criminal cases, including
attempt to murder, and there was admitted prior enmity
between him and the appellant. The prosecution here as well
relied on the testimony of an interested eyewitness (PW-1, the
Patna High Court CR. APP (DB) No.684 of 2018 dt.27-02-2026
deceased's brother), but the Supreme Court acquitted the
appellant, giving the benefit of doubt due to evidentiary lapses
and the impact of enmity. For the sake of reiteration, the
paragraph where the principle was upheld in the judgment is
as follows:
"22. It is a settled law that
enmity is a double-edged weapon. On
one hand, it provides motive, on the other
hand it also does not rule out the
possibility of false implication. From the
nature of the evidence placed on record
by the prosecution, the possibility of the
present appellant being falsely
implicated on account of previous enmity
cannot be ruled out. In our opinion,
therefore, the appellant is entitled to
benefit of doubt."
22. PW-6 Manish Ranjan is a formal witness who
proved the FIR and fardbeyan. His evidence is neutral but
underscores the fact that the recorder of the fardbeyan, S.I.
Shashi Shekhar, was never examined.
23. PW-7 Hemant Kumar, the Investigating Officer,
in his cross-examination made devastating admissions. He
found not a single drop of blood or anything else at the spot;
the body was lying in the fallow land adjacent to the
Patna High Court CR. APP (DB) No.684 of 2018 dt.27-02-2026
community hall; no site map with plot numbers was prepared;
no statements of boundary witnesses were recorded; no station
diary entries were made regarding movement; investigation
was handed over midway to another officer who was never
examined; and the recorder of the fardbeyan was not
examined. These are not minor irregularities. In Pankaj v.
State of Rajasthan, reported in (2016) 16 SCC 192, the
Hon'ble Supreme Court held that when the genesis and
manner of the incident itself are doubtful, conviction cannot
be sustained. The Hon'ble Supreme Court in paragraph no. 25
of the aforesaid judgement has held as under:
"25. It is a well-settled
principle of law that when the genesis
and the manner of the incident is
doubtful, the accused cannot be
convicted. Inasmuch as the prosecution
has failed to establish the circumstances
in which the appellant was alleged to
have fired at the deceased, the entire
story deserves to be rejected. When the
evidence produced by the prosecution has
neither quality nor credibility, it would be
unsafe to rest conviction upon such
evidence. After having considered the
matter thoughtfully, we find that the
evidence on record in the case is not
Patna High Court CR. APP (DB) No.684 of 2018 dt.27-02-2026
sufficient to bring home the guilt of the
appellant. In such circumstances, the
appellant is entitled to the benefit of
doubt."
24. The complete absence of any recovery of
weapon, empty cartridges or blood-stained earth further
weakens the prosecution case.
25. In Munna Lal v. State of U.P., reported in
(2023) 18 SCC 661, the Hon'ble Supreme Court ruled that the
failure to seize the weapon of offence dents the prosecution
story, leading to the benefit of doubt for the accused. The
relevant paragraph of the judgment is reproduced below:
"40. In the facts of the present
case, particularly conspicuous gaps in the
prosecution case and the evidence of PW
2 and PW 3 not being wholly reliable, this
Court holds the present case as one where
examination of the investigating officer
was vital since he could have adduced the
expected evidence. His non-examination
creates a material lacuna in the effort of
the prosecution to nail the appellants,
thereby creating reasonable doubt in the
prosecution case."
26. The statements of the accused under Section 313
Cr.P.C. are simple denials and a plea of innocence.
Patna High Court CR. APP (DB) No.684 of 2018 dt.27-02-2026
27. As per the law laid down in Selvi v. State of
Karnataka, reported in (2010) 7 SCC 263, no adverse
inference can be drawn from such denials. The relevant
paragraph of the said judgment is reproduced below:
"141. At this juncture, it must
be reiterated that Indian law incorporates
the "rule against adverse inferences from
silence" which is operative at the trial
stage. As mentioned earlier, this position
is embodied in a conjunctive reading of
Article 20(3) of the Constitution and
Sections 161(2), 313(3) and proviso (b) of
Section 315(1) CrPC. The gist of this
position is that even though an accused is
a competent witness in his/her own trial,
he/she cannot be compelled to answer
questions that could expose him/her to
incrimination and the trial Judge cannot
draw adverse inferences from the refusal
to do so. This position is cemented by
prohibiting any of the parties from
commenting on the failure of the accused
to give evidence. This rule was lucidly
explained in the English case of
Woolmington v. Director of Public
Prosecutions [1935 AC 462 : 1935 All ER
Rep 1 (HL)] , AC at p. 481:
"The 'right to silence' is a
Patna High Court CR. APP (DB) No.684 of 2018 dt.27-02-2026
principle of common law and it means
that normally courts or tribunals of fact
should not be invited or encouraged to
conclude, by parties or prosecutors, that
a suspect or an accused is guilty merely
because he has refused to respond to
questions put to him by the police or by
the Court."
28. The prosecution case, therefore, rests entirely on
the interested testimony of PW-3 and PW-5, which suffers
from material contradictions, unnatural conduct and lack of
any independent corroboration. The place of occurrence, as
alleged by the eyewitnesses, is not proved; on the contrary, the
IO's evidence shows a different spot with no objective signs
of the alleged shooting. The investigation is thoroughly
defective. Enmity, while providing a possible motive, equally
provides a motive for false implication.
29. In Sharad Birdhichand Sarda v. State of
Maharashtra, reported in (1984) 4 SCC 116, the Hon'ble
Supreme Court in paragraph 163 observed as follows:
"163. We then pass on to
another important point which seems to
have been completely missed by the High
Court. It is well settled that where on the
evidence two possibilities are available
or open, one which goes in favour of the
Patna High Court CR. APP (DB) No.684 of 2018 dt.27-02-2026
prosecution and the other which benefits
an accused, the accused is undoubtedly
entitled to the benefit of doubt. In Kali
Ram v. State of Himachal Pradesh
[(1973) 2 SCC 808 : 1973 SCC (Cri)
1048 : AIR 1973 SC 2773 : (1974) 1 SCR
722 : 1974 Cri LJ 1] this Court made the
following observations: [SCC para 25, p.
820: SCC (Cri) p. 1060]
"Another golden thread which
runs through the web of the
administration of justice in criminal
cases, is that if two views are possible on
the evidence adduced in the case, one
pointing to the guilt of the accused and
the other to his innocence, the view
which is favourable to the accused
should be adopted. This principle has a
special relevance in cases wherein the
guilt of the accused is sought to be
established by circumstantial evidence."
30. The same principle has been reiterated in the
case of Lal Mandi v. State of W.B., reported in (1995) 3 SCC
603. The Hon'ble Supreme Court in paragraph no. 5 of the
said judgement has observed as follows:
"5. To say the least, the
approach of the High Court is totally
fallacious. In an appeal against
Patna High Court CR. APP (DB) No.684 of 2018 dt.27-02-2026
conviction, the appellate court has the
duty to itself appreciate the evidence on
the record and if two views are possible
on the appraisal of the evidence, the
benefit of reasonable doubt has to be
given to an accused. It is not correct to
suggest that the "Appellate Court cannot
legally interfere with" the order of
conviction where the trial court has found
the evidence as reliable and that it cannot
substitute the findings of the Sessions
Judge by its own, if it arrives at a
different conclusion on reassessment of
the evidence. The observation made in
Tota Singh case [(1987) 2 SCC 529 :
1987 SCC (Cri) 381 : AIR 1987 SC 1083]
, which was an appeal against acquittal,
have been misunderstood and
mechanically applied. Though, the
powers of an appellate court, while
dealing with an appeal against acquittal
and an appeal against conviction are
equally wide but the considerations which
weigh with it while dealing with an
appeal against an order of acquittal and
in an appeal against conviction are
distinct and separate. The presumption of
innocence of an accused which gets
strengthened on his acquittal is not
available on his conviction. An appellate
Patna High Court CR. APP (DB) No.684 of 2018 dt.27-02-2026
court may give every reasonable weight
to the conclusions arrived at by the trial
court but it must be remembered that an
appellate court is duty-bound, in the same
way as the trial court, to test the evidence
extrinsically as well as intrinsically and
to consider as thoroughly as the trial
court, all the circumstances available on
the record so as to arrive at an
independent finding regarding guilt or
innocence of the convict. An appellate
court fails in the discharge of one of its
essential duties, if it fails to itself
appreciate the evidence on the record and
arrive at an independent finding based on
the appraisal of such evidence. The High
Court failed to do so and its view is
patently erroneous. Though this Court
does not generally reappraise the
evidence which has been considered by
two courts below in an appeal by special
leave but since the consideration of the
evidence by the High Court was not
proper, we have ourselves analysed the
evidence on the record with the assistance
of learned counsel for the parties."
31. Applying the above principles, we are of the
considered opinion that the prosecution has failed to prove the
guilt of the appellants beyond reasonable doubt. The view
Patna High Court CR. APP (DB) No.684 of 2018 dt.27-02-2026
taken by the learned trial court is not sustainable in law.
32. The judgment of conviction, dated 23 rd of April,
2018 and order of sentence, dated 26 th of April 2018, passed
by the learned Presiding Officer, Fast Track Court-I, Nalanda
at Bihar Sharif in Sessions Trial No. 573 of 2006, arising out
of Noorsarai Police Station Case No. 140 of 2004 are perverse
and are hereby set aside.
32. The appeal is allowed, on contest.
33. The appellants are acquitted of all charges.
34. The appellants shall be released at once.
(Bibek Chaudhuri, J)
(Dr. Anshuman, J)
skm/-
AFR/NAFR NAFR
CAV DATE 24.02.2026
Uploading Date 27.02.2026
Transmission Date 27.02.2026
