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Patna High Court
Krishna Lal Barnwal @ Krishna Modi vs State Of Bihar on 13 May, 2026
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.94 of 1999
======================================================
KRISHNA LAL BARNWAL @ KRISHNA MODI son of Sato Lal Barnwal,
resident of village Pursanda Police Station Sikandra, District Jamui
... ... Appellant/s
Versus
STATE OF BIHAR
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr.Shivendra Kr.Sinha
For the Respondent/s : Mr.Abhimanyu Sharma
======================================================
CORAM: HONOURABLE MR. JUSTICE NANI TAGIA
and
HONOURABLE MR. JUSTICE ANSUL
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ANSUL)
Date : 13-05-2026
Heard the learned counsel for the appellant as well as
the learned counsel for the State.
2. In the instant appeal, the appellant has challenged the
judgment of conviction dated 27.02.1999 and order of sentence
dated 09.03.1999 passed by the learned 1 st Additional Sessions
Judge, Jamui in Sessions Trial No. 24(A)/94/154/97, whereby the
appellant has been convicted under Section 396 of the Indian Penal
Code and sentenced to undergo rigorous imprisonment for life.
3. The prosecution in the instant case was lodged by
Pramila Devi (not examined), wife of Bhagwan Sah. She lodged
her statement that on 11.06.1992 stating that on the prior night she
Patna High Court CR. APP (DB) No.94 of 1999 dt.13-05-2026
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along with her daughter Rekha Kumari (deceased) was sleeping at
the roof of the house. Around 02:00 AM in the night her daughter
Rekha Kumari woke her up and pointed someone to her. She saw
that two persons were standing before her. When she started
weeping then her daughter Indu Devi (P.W. 3) and Nirmala Devi
(P.W. 4) came on the roof. Both the criminals started dragging
Nirmala (P.W. 4) and Rekha (deceased) down the stairs and while
dragging they were asking them to disclose as to where the goods
were kept. She started coming down with her daughter. Her
daughter Rekha started shouting near the stairs. The miscreants
caught Rekha. Out of fear she gave the keys. They opened the
southern and western room and started taking away the goods.
Indu stated that Rekha has been shot. Three-four more miscreants
came and started taking away three steel box and one briefcase.
They started shouting and weeping. After one hour Brahmdeo
Mahto (PW-6), Muni Mahto (PW-5) and others came. They
claimed that they could not identify the miscreants but would
identify them after seeing them. They further stated that the box
contained ten pieces of Saree, three sets of payal, one nose ring, a
gold chain, another silver jewellery, Rs. 1,000/- and three gold
rings were there which cost was around Rs. 30,000/-. Apart from
the jewellery other things were discovered by the villagers nearby
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the house. Surya Narayan Prasad (P.W. 7) was a witness to the
F.I.R.
4. After investigation, police submitted charge-sheet and
the case was committed to the court of sessions on 20.12.1993 by
the learned sub-Divisional Judicial Magistrate, Jamui.
5. During the course of trial, altogether eleven witnesses
were examined in support of the prosecution case, who are as
under: -
P.W.-1 Bhagawan Lal Barnwal
P.W.-2 Raj Kumar Lal
P.W.-3 Indu Devi
P.W.-4 Nirmala Devi
P.W.-5 Muni Mahto
P.W.-6 Brahmdeo Mahto
P.W.-7 Surya Narayan Prasad
P.W.-8 Awadh Kishore Pandey
P.W.-9 Dr. Shankar Nath Jha
P.W.-10 Rambhajju Mahtha
P.W.-11 Ram Swarup Paswan
On behalf of defence, two witnesses namely Daso
Pandit (D.W. 1) and Arjun Pandey (D.W. 2) were also examined.
6. Apart from the oral evidence, the documentary
evidences were also exhibited on behalf of the prosecution, which
are as follows: -
Exhibit- 1 Signature of Raj Kumar Lal on the Inquest
Report
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Exhibit- 1/1 to ½ Signature on Inquest Report
Exhibit- 1/3 Signature of witness Awadh Kishore Pandey
on Seizure List
Exhibit-2 Postmortem Report
Exhibit-3 Identification of Witnesses
Exhibit-4 FIR
Exhibit-5 Fardbeyan
7. P.W. 1 Bhagwan Lal Barnwal deposed. He is the
father of the deceased and husband of the informant. He stated
that on 12.06.1992 he reached his house. His wife (not examined)
and daughter Nirmala (P.W. 4) told him that dacoits looted away
the goods of the house. After ten days his wife informed that he
identified four persons who committed dacoity and they were
Amir Lal, Gareeb Lal, Krishna Lal (appellant) and Shankar
Mahto. He stated that some seven years back he had opened the
shop in front of the house of Gareeb Lal and Ameer Lal. They had
threatened him that if he will not remove his shop they will get
dacoity committed in his house. He admitted that he did not
inform anybody regarding the prior threat.
8. P.W. 2 Raj Kumar Lal is the witness to the inquest
report. He stated that the inquest report was not prepared before
him but he identified his signature of the inquest report.
9. P.W. 3 Indu Devi is daughter of Bhagwan Lal. She
claimed that she and Nirmala (P.W. 4) went on the roof and
Patna High Court CR. APP (DB) No.94 of 1999 dt.13-05-2026
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accused Shankar Mahto fired upon her sister Rekha who died. She
claimed to have identified one Payal. In cross-examination she
claims to identify the appellant also. She stated that she did not
claim to identify these persons because she was weeping but she
states that she identified all the three before the Superintendent of
Police. She claimed that she knew Shanker Mahto from before.
She also states that she was shot point blank. She stated that other
miscreants Gareeb Lal and Ameer Lal were of their caste and of
their village and they had enmity with her father for last four to
five years.
10. P.W. 4 Nirmala Devi is another daughter of
informant and P.W. 1. She states that she identified the appellants
amongst others. She claimed that the appellant was of her village
and their house was two-four houses after them. She stated like
P.W. 3 that nobody had covered his face. She further stated that
there was no light on the roof and there was no provision for
keeping any light on the stairs.
11. P.W. 5 is Muni Mahto. He is referred to in the FIR.
In his chief-examination he has not named anybody. He has stated
that when he heard the sound of firing he started raising Hulla
from his house itself. When some co-villagers came, he went to
the house of Bhagwan Lal.
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12. P.W. 6 Brahmdeo Mahto was tendered for cross-
examination.
13. P.W. 7 Surya Narayan Prasad is witness to the F.I.R.
as well as inquest report.
14. P.W. 8 Awadh Kishore Pandey is also witness to the
seizure list but he has been declared hostile.
15. P.W. 9 Dr. Dhankar Nath Jha is the doctor who
conducted the postmortem of the deceased. Homicidal death of the
deceased is not an issue and thus his deposition is not very
relevant.
16. P.W. 10 is the Block Development Officer who got
the Test Identification Parade conducted in which the silver anklet
was identified.
17. P.W. 11 is the stock witness. He is the court clerk
who identified the signature of the informant on the FIR.
18. That the defence examined Daso Pandit (D.W. 1)
and Arjun Pandey (D.W. 2).
19. D.W. 1 stated that Bhagawan Lal Barnwal and
Krishna Lal Barnwal had their shops in the village and there was
business rivalry between them. Ameer Lal and Gareeb Lal were
brothers of Krishna Lal Barnwal.
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20. D.W. 2 is another defence witness who supported
the factum of prior animosity between the parties.
21. The counsel for the prosecution submitted that
prosecution has proved its case without doubt. The homicidal
death of Rekha Kumari is not in doubt. Some looted materials
were recovered during investigation which were identified in Test
Identification Parade. Thus, the factum of dacoity is also
established.
22. P.W. 1, P.W. 3, P.W. 4 have named the accused
persons clearly and consistently. P.W. 1 is the husband of the
informant and he has no reason to lie. P.W. 3 and 4 are the eye
witnesses to the occurrence and they have also clearly named the
accused persons.
23. Counsel for the defence has stated that the informant
and the I.O. of the case has not been examined and thus, the FIR
(the primary document) of the case has not been proved. He
further stated that neither in the FIR nor in the further statement of
the informant the name of the accused persons transpired. P.W. 3
and P.W. 4 in their statement before police even on the date of
occurrence have only named Shankar Mahto as an assailant and
not the appellant. Even P.W. 1 has only stated the name of Shankar
Mahto. During investigation one set of anklet was recovered from
Patna High Court CR. APP (DB) No.94 of 1999 dt.13-05-2026
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the house of Ramchandra Das who was Mama of Shankar Mahto,
the person who is alleged to have shot the deceased.
24. Ramchandra Das in his confessional statement has
given an entirely different story. The name of the accused persons
has been taken for the first time before Superintendent of Police
during supervision on 21.08.1992 i.e. after ten days of the
occurrence.
25. Certain basic facts necessary for adjudication of the
case are as under:-
(I) FIR was lodged against unknown.
(II) The informant even in her further statement did not
name the appellant.
(III) P.W. 1 husband of the informant admitted that his
wife, the informant had informed him about the name of the
appellant ten days after occurrence.
26. Neither P.W. 1 nor P.W. 3 and 4 had named this
appellant in their statement before police under Section 161.
27. P.W. 3 and P.W. 4 during investigation named
Shankar Mahto. Recovery of one silver anklet was made from the
house of Mama of Shankar Mahto namely Ramchandra Das.
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28. The witnesses have admitted that no source of light
for identification was available to them.
29. That the witnesses have also admitted that appellant
was their neighbor and co-villager and there was prior animosity
between P.W. 1 and the appellant.
30. This Court proceeds to analyse the facts and arrive
at a conclusion in the light of aforesaid facts which are more or
less admitted in the deposition of the witnesses.
(I) That the FIR has been lodged against unknown
and P.W. 1, 3 and 4 have not named the appellant during
investigation. Surprising part is that they admitted that this
appellant was their neighbor and there was prior animosity
between P.W. 1 and the appellant as they had their shops at
the same place. In such situation, the courts have held that
even in the dark of night identification can be made but the
same has not been done.
31. The witnesses have admitted the delayed naming of
the appellant.
32. In the case of Gayadin v. State of M.P., reported in
(2005) 12 SCC 267 Hon'ble Supreme Court has held at para-5
that:-
Patna High Court CR. APP (DB) No.94 of 1999 dt.13-05-2026
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"5. At the outset it is to be stated that
there is no direct evidence to prove the prosecution
case. The High Court mainly relied on the
circumstances that there existed a bad relationship
between the appellant and his wife and he used to
beat her and that the appellant was last seen along
with the deceased and that he had set up a false plea
of alibi. The counsel for the appellant and the
counsel for the State drew our attention to the oral
evidence adduced in this case. PW 12 and PW 10
were examined to prove that the appellant used to
beat the deceased Kasturi Bai. These two witnesses
are neighbours and they stated that they came to the
house of the appellant and saw the deceased Kasturi
Bai lying on a carpet and she had been weeping and
stating that she was beaten by her husband. Apart
from this, there is no direct evidence as to what had
transpired on the day prior to the death of the
deceased. Strangely enough, these two witnesses
were not questioned by the investigating officer
within a reasonable time. PW 10 was questioned
about 20 to 22 days after the incident whereas PW
12 was questioned by the police after a period of 8
days of the incident. There is no case that these
witnesses were not available in the locality during
the time of the incident and the police could have
ascertained the facts from these neighbours. There is
every possibility that these witnesses could have
been planted witnesses just to help the prosecution.
This fact should have been taken note of by the High
Patna High Court CR. APP (DB) No.94 of 1999 dt.13-05-2026
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Court, especially when the High Court was
considering a case of an appeal against acquittal."
33. In the case of Govind Mandavi v. State of
Chattisgarh, reported in 2025 SCC OnLine SC 2731 Hon'ble
Supreme Court has held at para 41 and 43 that:-
"41. As a matter of fact, going by the
fardbeyan (Exh. P/1), the only omission in what the
witness conveyed to Heeralal Hidko (PW-1) was the
name of accused-appellant Govind Mandavi. This
was far too crucial a fact for the witness to have
forgotten or omitted while narrating the details of
the assault on her husband, to her father-in-law
Heeralal Hidko (PW-1). It is clear that the witness
Smt. Sukmai Hidko (PW-2) described every other
minute aspect such as the arrival of the masked men,
the time at which they came, their physical features
(one tall, one short and lean), the weapons they
carried, the manner in which they awakened her
husband, took him away from the farm hut, and the
cries she heard thereafter. It is therefore completely
unbelievable that she would have omitted to mention
the name of the accused to her father-in-law on the
ground that she was unwell. This omission strikes at
the very foundation of the prosecution's case, and it
appears that, to overcome the same, a story was
subsequently cooked up and introduced in the
belated police statement of Smt. Sukmai Hidko (PW-
Patna High Court CR. APP (DB) No.94 of 1999 dt.13-05-2026
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2) suggesting that she had fallen ill and was
therefore prevented from disclosing the name of
Govind Mandavi to her father-in-law even though
she had identified him by his voice and as his mask
had fallen off.
43. Thus, the belated introduction of the
accused-appellant's name in Smt. Sukmai Hidko's
(PW-2) 161 CrPC statement dated 21st April, 2021,
appears to be a clear manipulation, devised to
implicate the accused-appellant in the crime owing
to prior enmity."
34. This coupled with the fact that the Investigating
Officer of the case could not be examined to ascertain the veracity
of the statement creates a serious dent in the case of the
prosecution. It is settled law right from Tahsildar Singh v. State
of U.P., reported in 1959 SCC OnLine SC 17 that even a fact
which has not been brought before the police during investigation
and the same is being brought for the first time in trial then the
attention of the witnesses has to be drawn towards his previous
statement made before police and the contradiction has to be
elicited from the Investigating Officer during his examination only
then the credit of the witness could be impeached and the material
improvement can be taken out of consideration.
Patna High Court CR. APP (DB) No.94 of 1999 dt.13-05-2026
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35. In the instant case, the witnesses have admitted the
delayed naming but the Investigating Officer was not available to
elicit the contradiction in terms of Section 145 and 155 of the old
Evidence Act. Thus, non examination of I.O. has caused grave
prejudice to the appellant.
36. In this case the informant has not been examined
and no explanation has been given for his non-examination. In the
absence of informant proving of an FIR through court clerk, a
formal witness, clearly shows that the fardbeyan could not be
treated as a document worth consideration.
37. The investigating officer of the case has not been
examined. The court is aware of the settled law that non-
examination of Investigating Officer in any case is not always
fatal to the prosecution but in the circumstances detailed above
when the witnesses have materially improved the case during trial
non examination of Investigating Officer has proved fatal to the
prosecution.
38. That even the late identification of the accused is
clearly doubtful as no source of identification at the dead of night
has been indicated.
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39. In the case of Anjani Singh v. State of U.P.,
reported in 2026 SCC OnLine SC 9 Hon'ble Supreme Court has
held at para 38 that:-
"37. Another feature of the case which
requires mention is that the gun shot injuries found
on the body of the two deceased disclosed
blackening at the margins of the entry wound
suggesting that shots were fired from close range. If
shots were fired from a close range, why would a
person kill two innocent people against whom there
is no motive. This throws doubt on the theory
propounded by the prosecution that gunshots were
aimed at someone else but by chance they hit the
two deceased. Whether those persons were targeted,
if so, by whom, or were victim of indiscriminate
firing, is not easy to decipher from the prosecution
evidence. Moreover, the aforesaid circumstances
lend credence to the testimony of other witnesses
that at the time of occurrence lights went off. More
so, when one of the two deceased was a generator
operator.
38. In such circumstances, taking a
conspectus of the entire evidence as also the fact
that all eye witnesses, except PW-1, have not
supported the prosecution case and have
consistently deposed about there being no light at
the time of occurrence, in our view, it was a fit case
where the benefit of doubt ought to have been
extended to the appellant (Anjani) by the courts
Patna High Court CR. APP (DB) No.94 of 1999 dt.13-05-2026
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below. Consequently, the appeal is allowed. The
judgment and order convicting the appellant
(Anjani) is set aside. The appellant Anjani shall
stand acquitted of the charges for which he was
tried. It is observed that Anjani was released on bail
during the pendency of this appeal. Consequently,
his bail bonds are discharged."
40. No material has been seized to show that there was a
source of light in which the accused persons were identified.
41. In such circumstances, this Court has no option but
to acquit the appellant.
42. Accordingly, the appeal is allowed and the judgment
of conviction dated 27.02.1999 and the order of sentence dated
09.03.1999
passed by the learned 1st Additional Sessions Judge,
Jamui in Sessions Trial No. 24(A)/94/154/97, whereby the
appellant has been convicted under Section 396 of the Indian Penal
Code and sentenced to undergo rigorous imprisonment for life is
set aside. Consequently, the appellant of the present appeal is
acquitted of the charges levelled against him.
Patna High Court CR. APP (DB) No.94 of 1999 dt.13-05-2026
43. If the appellant is in jail, he shall be released
forthwith, if not required in any other case. The appellant is
discharged from the liabilities of his bail bond.
44. The lower court records be sent to the concerned
court.
(Ansul, J)
I agree
amitkr/- ( Nani Tagia, J)
AFR/NAFR NAFR
CAV DATE 19.02.2026
Uploading Date 13.05.2026
Transmission Date 13.05.2026
