Patna High Court
Rahul Kumar vs The State Of Bihar on 17 February, 2026
Author: Anshuman
Bench: Anshuman
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.331 of 2018
Arising Out of PS. Case No.-240 Year-2010 Thana- SHIVSAGAR District- Rohtas
======================================================
Rahul Kumar S/o Shreeveer Singh, R/o Village- Goyala, P.s.- Shahpur,
District- Muzaffarpur Nagar U.P..
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
Mrs. Sushmita Mishra, Advocate
Mrs. Vaishnavi Singh, Advocate
Mr. Ritwik Thakur, Advocate
For the Respondent/s : Ms. Shashi Bala Verma, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
and
HONOURABLE MR. JUSTICE DR. ANSHUMAN
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI)
Date : 18-02-2026
The appellant was a Constable of Central Reserve
Police Force (CRPF). In connection with Sessions Trial No. 381 of
2011, arising out of Shivsagar P.S. Case No. 240 of 2010, he was
convicted by the learned Additional Sessions Judge, Fast Track
Court No.-2, under Section 235 (2) of the Code of Criminal
Procedure, 1873 for committing offence under Section 302 of the
Indian Penal Code and sentenced to rigorous imprisonment for
life.
2. The aforesaid judgment of conviction and sentence is
under challenge in the instant Shivsagar P.S. Case No. 240 of 2010
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
2/86
was registered on the basis of a written complaint submitted by
one Ram Lal, Inspector of C.R.P.F. of F/198 Company, stationed at
Vishakhapatnam in the State of Andhra Pradesh. The informant
along with other officers and force, attached to the said Company
of CRPF, came to Raipur Chaur on 7th of October, 2010 for
performing Bihar Assembly Election duty. They were temporarily
staying in Scheduled Caste and Scheduled Tribe Hostel at Raipur
Chaur. On 8th of October, 2010, the informant and Company
Commander, Rohit Raj Diwana were sleeping in the two separate
beds in Room No. 7 of the said hostel. One Sub-Inspector, R. N.
Pandey and Sub-Inspector, Hussain Ali were sleeping in the most
southern side room of the hostel. From 04.00 a.m. to 06.00 a.m.,
on 9th of October, 2010, one Mritunjay Khan and the appellant
Rahul Kumar were performing Sentry Duty on the northern side
and southern side of the roof, respectively. One Anil Sharma was
on duty at the main gate of the said hostel and one Mansa Khanaut
was performing duty in front of the "Kote" (Armory Room) from
04.00 a.m. to 06.00 a.m. Suddenly, at about 05.15 a.m., the
informant heard sound of repeated firings; he immediately woke
up and saw that Constable No. 75266121, Rahul Kumar, being
armed with one AK-47 rifle, was fleeing from his room. He also
saw that inspector, Rohit Raj Diwana received injury on his person
by indiscriminate firing and lying dead in pool of blood in his bed.
At that time, he again heard sound of repeated firing. He came out
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
3/86
of his room and saw Constable, Rahul Kumar was running towards
the roof with AK-47 rifle in his hand. Hearing sounds of firing,
other officers and Jawans of CRPF woke up and proceeded
towards southern side of the said hostel. They also found Sub-
Inspector, R. N. Pandey lying dead in pool of blood, being
assaulted by several gun-shot injuries. The Sub-Inspector, Ali
Hussain, who was sleeping in the said room with Sub-Inspector, R.
N. Pandey told the informant and others that the appellant fired at
R. N. Pandey with the help of AK-47 rifle and fled away on the
roof. One Hawaldar, Anil Sharma was taking bath under the tube-
well in front of the hostel. Suddenly, he was hit by a bullet,
causing abrasion on his head. The informant also learnt that when
Rahul Kumar was proceeding towards the roof after committing
murder of R. N. Pandey, he fell down and received injury on his
head. The informant informed the matter to his superior officers.
The superior officers came to the spot. Thereafter, Hawaldar, Babu
Ram Singh, Birendra Singh, Bhopen Gogoi and others managed to
apprehend the appellant, Rahul Kumar with one AK-47 rifle. At
the time of apprehension, Rahul Kumar resorted to one round
firing but nobody was injured. The possession of AK-47 rifle was
taken over by the officers of the force and it was found that one
magazine of the rifle was empty and another magazine was loaded
with cartridge.
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
4/86
3. The informant also stated that on 8th October, 2010, the
appellant, Rahul Kumar and some other Jawans were taken to task
by the superior officers due to the reason that they did not obey the
directions of the superior officers. As the appellant was rebuked by
his superior officers, he took revenge by committing murder of
Rohit Raj Diwana and R. N. Pandey by resorting to fire with the
help of AK-47 rifle.
4. The said information was recorded by one Ajay Kumar,
SHO, Baddi Outpost at Raipur Chaur, which was read over to the
appellant and the informant put his signature on the complaint.
Then the complaint was sent to the SHO, Shivsagar Police Station
for registration of a specific case against the appellant.
Accordingly, Shivsagar P.S. Case No. 240 of 2010, dated 9 th
October, 2010, was registered under Section 302/307 of the Indian
Penal Code and Section 27 of the Arms Act. Sub-Inspector, Ajay
Kumar of Baddi Outpost was entrusted to cause investigation of
the case.
5. During investigation, the Investigating Officer inspected
the place of occurrence; recorded the statement of the witnesses;
seized the offending weapon as well as "Kote" (armory register),
and other documents, seized the offending fire arm and conducted
the inquest over the dead bodies of Rohit Raj Diwana and R. N.
Pandey. The dead bodies were sent for post-mortem examination.
The Investigating Officer collected the post-mortem reports of the
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
5/86
deceased. He also collected the report of the arms expert with
regard to workability and functionality of AK-47 rifle. The seized
AK-47 rifle was examined at Forensic Science Laboratory by
ballistics experts and on conclusion of investigation, he submitted
charge-sheet under Section 302/307 of the Indian Penal Code and
Section 27 of the Arms Act before the learned Chief Judicial
Magistrate, Rohtas at Sasaram on 4th January, 2011.
6. Since the offence under Section 302/307 of the Indian
Penal Code is exclusively triable by the Court of Sessions, the
learned Chief Judicial Magistrate committed the case record to the
Court of learned Sessions Judge, Rohtas at Sasaram. The learned
Sessions Judge transferred the case to the Fast Track Court No. II
of the learned Additional Sessions Judge at Sasaram for trial and
disposal.
7. The Lower Court record further shows that the learned
Additional Sessions Judge, Fast Track Court-II, Rohtas at Sasaram
framed charge against the appellant under Section 302/307 of the
Indian Penal Code and Section 27 of the Arms Act. The charge, so
framed, was read over and explained to the accused/appellant, who
pleaded not guilty and claimed to be tried.
8. During trial, prosecution examined 17 witnesses. Inquest
reports, postmortem reports, Kote (Armory Register) and some
other documents were marked exhibits, which we propose to refer
subsequently in the body of the judgment. After examination of the
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
6/86
witnesses on behalf of the prosecution, the accused was examined
under Section 313 of the Cr.PC. He pleaded his innocence and that
he was falsely implicated in the case. The appellant, however, did
not examine any witnesses on behalf of his defence. On conclusion
of trial, the learned Trial Judge held the appellant guilty for
committing offences under Sections 302/324 of the Indian Penal
Code. Finally, the learned Trial Judge sentenced the appellant to
suffer rigorous imprisonment for life for the offence under Section
302 of the IPC.
9. The appellant has assailed the said judgment of
conviction and order of sentence in the instant appeal.
10. The prosecution examined the following witnesses
during trial in S.T. No. 381 of 2011, which may be listed in the
following categories::
(i) CRPF Personnel: PW-1 Hasrat Ali, PW-2 Anil
Sharma, PW-3 Suresh Chandra, PW-4 M.L. Narayanan, PW-5
Mansha Khanrat, PW-6 Bhupen Gagoi, PW-7 Rajeshwar Rao, PW-
8 Havaldar Baburam, PW-9 Mirtyunjay Khan, PW-10 Hasan Ali,
PW-12 Anil Kumar Singh, and PW-13 Ram Lal. PW-12 Anil
Kumar Singh was declared hostile by the prosecution and PW-13
Ram Lal, was the informant, who made the statement before the
police about the incident which was recorded by the police and
treated as the FIR. The said statement of PW-13 is the basis of
registration of Shivsagar P.S. Case No. 240 of 2010.
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
7/86
(ii) Police witnesses: PW-11 Sudhir Kumar Sinha, who
was posted as Sergeant Major at Sasaram on 30.10.2010,
examined the AK-47 rifle which was produced before him by Sub-
Inspector Ajay Kumar. PW-16 Ajay Kumar is the Investigating
Officer of the case.
(iii) Medical Witness: PW-14 was the Medical Officer
of Sasaram Sadar Hospital who conducted the postmortem
examination on the dead bodies of CRPF personnel Rohit Raj
Diwana and R.N. Pandey.
(iv) Scientific Expert: PW-17 Rakesh Kumar, was
posted as Assistant Director, Forensic Science Laboratory, Patna,
on 7.04.2011. He scientifically examined the seized AK-47 rifle in
his laboratory and submitted his forensic report.
11. Some documents were marked exhibits which we
propose to refer subsequently in the body of the judgment.
12. At the outset, we feel it necessary to narrate in brief
the evidence adduced by the witnesses on behalf of the prosecution
during trial.
13. Since PW-13 Ram Lal was the informant of the case,
it would be beneficial to start with his deposition, as it has a direct
bearing on the genesis of the prosecution case. From the evidence
of PW-13 as well as other CRPF personnel examined during trial,
it emerges that CRPF Company F/198, comprising 76 officers and
jawans, had been deployed in Bihar in connection with the
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
8/86
Assembly Election, 2010. They took shelter on and from
07.10.2010
in a Scheduled Caste students’ hostel at Raipur Chaur.
On the night of 08.10.2010, PW-13 was sleeping in Room No. 7
along with the Company Commander, namely, Rohit Raj Diwana,
on two separate beds. In the early morning of 09.10.2010, he heard
sounds of repeated firing, whereupon he woke up and saw that the
appellant was fleeing away with AK-47 rifle in his hand from the
door of their room. He also found Rohit Raj Diwana lying dead in
a pool of blood. Immediately thereafter, PW-13 heard sounds of
indiscriminate firing coming from the southern side of the camp.
He rushed towards that direction with his firearm, when ASI
Hasan Ali informed him that the appellant had shot dead R.N.
Pandey by gunshot injury and had fled towards the roof of the
hostel. PW-13 then went to the southern-side room where RN
Pandey was sleeping and found ASI R.N. Pandey lying dead in
pool of blood. PW-13 thereafter rushed towards the staircase of the
hostel leading to the roof, where he found the appellant saying that
he had killed Rohit Raj Diwana and R.N. Pandey, and that he
would kill anyone who will attempt to approach him. PW-13
informed the incident to higher officials of the company over
phone. After about two hours, the appellant was apprehended by
CRPF jawans from the roof of the said hostel and from his
possession, one AK-47 rifle along with two magazines, 31 blank
cartridges and 29 rounds of live cartridges were recovered. The
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
9/86
seized articles were handed over to the police, whereupon the
statement of PW-13 was recorded and treated the same as the FIR,
leading to the registration of Shiv Sagar P.S. Case No. 240 of
2010, and investigation was taken up.
Evidence of other witnesses are as follows:
14. In his examination-in-chief, PW-1 stated that he
woke up early, went to the toilet and then to the hand pump to
fetch water, and while near his room heard gunshots which he
initially believed to be a Naxalite attack. He woke his colleagues
and heard firing from another direction as well. He later learnt that
Assistant Commandant Rohit Raj Diwana and Sub-Inspector R.N.
Pandey had been killed and that they were involved in that firing.
He identified the accused in court as a member of the same
company, which comprised 76 personnel staying in the same
hostel. He proved three seizure lists (marked Exhibits 1 to 3/A)
and two inquest reports of the deceased (marked Exhibits 4 to
5/A), all dated 09.10.2010, prepared by SHO Ajay Kumar in his
presence, identifying the handwriting, signatures of the SHO and
his own signatures thereon.
15. In cross-examination, he maintained that the incident
was perceived as a Naxalite attack, that even later he came to
know the two officers had been killed in such an attack, and that
Naxalites were searched but had fled. He stated that police arrived
about two hours after the incident. Regarding one seizure relating
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
10/86
to recovery of a bullet, he admitted signing the document as a
formality when told to do so by the Inspector.
16. PW-2 is a Constable in the CRPF, posted with
Company F/198 at the Scheduled Caste school in Raipur Chaur for
election duty during the Bihar Legislative Assembly elections. He
was on duty at the main gate of the school from 4:00 a.m. to 6:00
a.m. on 09.10.2010.
17. In his examination-in-chief, PW-2 deposed that at
around 5:15 a.m., while on gate duty, he heard gunfire which he
initially believed to be a Naxalite attack. He took position, and
after 10-15 seconds heard more gunfire. Thereafter, he saw
Constable Rahul Kumar (the accused) on the terrace stating,
“Mujhe jo karna tha wah kar diya, ab kisi ko kuch nhi krna hai,
tum log position kyon le rahe ho.” (I have done what I had to do,
now no one has to do anything, why are you guys taking position.)
The Company Commander and others questioned the accused, and
it appeared to PW-2 that the act was committed due to scolding
received by the accused from deceased Rohit Raj Diwana the
previous night. PW-2 then proceeded to room no. 7 where he saw
deceased Rohit Raj Diwana lying in a pool of blood, and
subsequently in another room saw deceased R.N. Pandey similarly
lying in blood. SI Hasan Ali informed him that Constable Rahul
Kumar had killed both officers with an AK-47. PW-2 identified the
accused in court as the same constable who was in uniform with an
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
11/86
AK-47 on the terrace/building and who had been in the same
battalion for about five months.
18. In cross-examination, PW-2 clarified details of the
school premises, duty rosters, arms register maintained by the
Kote Commander (M.L. Narayanan), arrival of the company on
07.10.2010, and mess arrangements. He stated that the company
was not afraid of Naxalite attacks despite the area being Naxal-
affected. He denied that departmental action was initiated against
14 personnel (including himself) to extract information or that he
was deposing falsely to avoid such action. He maintained that he
had stated to the police that the accused committed the incident
and reiterated that the accused is not innocent.
19. Certain minor discrepancies were suggested
regarding the exact time of hearing the first gunshot (stated as 5:15
a.m. though an earlier mention of 6:15 a.m. was put to him) and
duty postings, but he affirmed that the accused was on rooftop
duty and that four constables, including the accused, were present
at the material time.
20. PW-3, a Sepoy in the CRPF Company F/198, was
deployed for election duty at the Scheduled Tribe school hostel in
Raipur Chaur, Rohtas District. He had completed his duty shift
from 2:00 a.m. to 4:00 a.m. on 09.10.2010 and had gone to sleep
on the rooftop, placing his issued AK-47 rifle (with four
magazines and 120 rounds) beside him.
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
12/86
21. In his examination-in-chief, PW-3 deposed that he
woke up around 5:15 a.m. to the sound of gunfire. Upon
awakening, he discovered that his AK-47 rifle and ammunition
were missing. Shortly thereafter, Constable Rahul Kumar came
running up the stairs to the rooftop, shouting loudly that there had
been no Naxalite attack, that he had done what he had to do, that
he had killed Assistant Commandant Rohit Raj Diwana and Sub-
Inspector R.N. Pandey, and that no one should take positions or
inform the authorities via mobile phone, threatening to kill anyone
who attempted to do so or to apprehend him. The accused
specifically called out to Inspector Ram Lal Sah (a Jat like
himself) assuring him he would not be harmed, directed that the
Kote N.C.O. Register be sent up, and proceeded to deposit an
INSAS rifle while having an AK-47 issued in his name. The
accused was armed with both an AK- 47 and an INSAS rifle slung
over his shoulder. PW-3 reported the theft of his weapon to the
Guard Commander and later to Inspector Ram Lal Sah.
Subsequently, the accused was apprehended on the rooftop by
Havaldar Babu Ram and other constables (Mandeep, Virendra, and
Bhupen Gosai) around 7:45 a.m. after the civil police had arrived,
during which process one shot was fired but no one was injured.
PW-3 identified the accused in court and categorically stated that
the accused murdered both deceased officers using an AK-47 rifle.
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
13/86
He further stated that his missing AK-47 was recovered from the
accused and handed over to the police.
22. In cross-examination, extensive suggestions were
put regarding duty rosters, arms issuance procedures, the Kote
Register, and the Duty Register. PW-3 admitted to certain
overwritings and alterations in the Kote Register (pages 58- 63)
concerning magazine and ammunition quantities for several
personnel, including the accused (e.g., magazines changed from 2
to 4 and ammunition from 60 to 120 for the accused). He also
acknowledged alterations in the Duty Register (cuttings and
overwritings in weapon columns against the accused’s name and
his own). A departmental inquiry had been conducted against him
in connection with the incident, but he denied any knowledge of
the accused testifying against him therein or that his evidence was
false to save himself. He maintained that the cuttings/alterations in
the Duty Register were not done later with connivance to implicate
the accused. He clarified details of camp layout, duty postings,
and arms issuance protocols but firmly denied that his account of
the accused & shouts and confessions on the rooftop was
fabricated. The testimony of PW-3 is that of a direct ocular and
auricular witness to a detailed extra-judicial confession made by
the accused immediately after the incident in the presence of
several personnel on the rooftop. The accused’s statements,
“Mujhe jo karna tha wah maine kar diya tatha koi naxali hamla
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
14/86
nahi hua hai tatha maine Rohit Raj Diwana tatha R.N. Pandey ki
hatya kar diya hai tatha kisi ko bhi position lene ki aawyashakta
nahi hai.” (I have killed Rohit Raj Diwana and R.N. Pandey, there
has been no Naxalite attack), coupled with threats and specific
assurances to Inspector Ram Lal Sah constitute a clear,
unequivocal, and voluntary admission of guilt. This confession is
substantially corroborated by the recovery of PW-3’s own missing
AK-47 from the accused, establishing the weapon used, the
accused’s manipulation of the arms register to exchange an INSAS
for an AK-47 post-incident, his armed presence on the rooftop
with duty opportunity, the consistent account of PW-2 regarding
the accused’s earlier announcement on the terrace and the motive
of prior scolding.
23. PW-4, Havaldar M.L. Narayanan, served as Kote
Commander, Kote Guard Commander, and Main Gate Guard
Commander in CRPF Company F/198 stationed at the S.C.S.T.
School Hostel, Raipur Chaur, for election duty. In his examination-
in-chief, PW-4 deposed that at around 5:15 a.m. on 09.10.2010, he
heard gunfire, armed himself, and emerged from the Kote. He
heard further firing and, while ascending the stairs to the rooftop,
saw Constable Rahul Kumar armed with both an INSAS and an
AK-47 rifle. The accused declared that there had been no Naxalite
attack, that he had killed DSP O.C. Rohit Raj Diwana and S.I.
R.N. Pandey, and instructed personnel not to fire. PW-4 then
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
15/86
proceeded to the rooms of the deceased and observed both officers
dead, with blood spread and AK-47 empty cartridges cases
scattered. From the rooftop, the accused repeatedly announced his
sole responsibility for the incident, abused the officers, and
directed Inspector Ram Lal Sah to send the Kote In-Out Register
so that he could enter his name and ensure no one else was
implicated. On Ram Lal Sah’s orders, PW-4 sent the register via
Constable Mrityunjay Khan to the rooftop, whereupon the accused
deposited an INSAS rifle with 5 magazines (100 rounds) and had
an AK-47 issued in his name. PW- 4 proved the relevant entries in
the Kote Register (pages 62-63) in the accused’s handwriting
(marked Exhibit 6) and his own entries/signatures from pages 58-
63 (marked Exhibit 7). He attributed motive to prior harassment of
the accused by the deceased Rohit Raj Diwana (separating 17
personnel including the accused for not eating khichdi, and late-
night questioning/scolding on 08.10.2010 till midnight). He stated
that the accused took Suresh Chandra’s AK-47 (while the latter
was sleeping on the rooftop) to commit the murders. PW-4 proved
seizure lists of recovered cartridges (Exhibits 8, 1/2, 2/2, 3/2) and
various summaries/entries in the Duty Register (Exhibits 9/1 to 9/4
and related). He identified the accused in court.
24. In cross-examination, PW-4 was confronted with
details of departmental inquiries against himself and others
(including the accused), alterations/overwritings in the Duty
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
16/86
Register and Kote Register, and specific statements made in the
departmental inquiry (e.g., admitting certain changes in registers
with Havaldar Babu Ram, initially issuing INSAS to the accused
and AK-47 to Suresh Chandra on 08.10.2010). He acknowledged a
departmental inquiry against him and 15-16 others, testified in the
accused’s inquiry, and admitted some procedural
irregularities/tampering in registers but denied orchestrating the
case to save himself or falsely implicating the accused. He
maintained the truth of his account regarding the accused’s
declarations, threats, and manipulation of the Kote Register.
25. PW-5, a Constable in CRPF Company F/198, was on
Kote Guard duty from 4:00 a.m. to 6:00 a.m. on 09.10.2010 at the
Scheduled Tribe school hostel camp in Raipur Chaur. In his
examination-in-chief, PW-5 deposed that at around 5:25 a.m., he
heard gunfire which he initially believed to be a Naxalite attack on
the camp. He took position and, seconds later, heard further firing.
Shortly thereafter, he heard the accused Rahul Kumar shouting
from the rooftop: “Mujhe jo karna tha wah kar diya hai, tum log
position kis liye le raha hai” (I’ve done what I had to do. Why are
you people taking positions?) The accused openly declared that he
had killed O.C. Rohit Raj Diwana and S.I. R.N. Pandey, threatened
to kill any soldier who informed the authorities, and specifically
assured Inspector Ram Lal Sah that he would not be harmed. The
accused, armed with an AK-47 and an INSAS rifle slung over his
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
17/86
shoulder, directed that the Kote register be sent up so that no other
soldier would face trouble. The Kote Commander complied by
sending the register via Constable Mrityunjay Khan, following
which an INSAS rifle and magazines were returned.
Approximately 1-2 hours later, company personnel apprehended
the accused on the rooftop amid a single gunshot (no injuries).
PW-5 later visited the rooms of the deceased and observed both
officers lying in pools of blood with AK-47 empty cartridges
scattered nearby. He recounted the prior khichdi incident at
Kulhariya station (where 17 personnel, including the accused,
initially refused khichdi and were separated) and the late-night
scolding of the accused on 08.10.2010 as the background. He
further stated that Havaldar Anil Singh (injured by a grazing
bullet) informed him that the appellant shot R.N. Pandey.
Subsequently, PW-5 identified the accused in court and
categorically attributed the murders to him.
26. In cross-examination, PW-5 provided details of the
camp arrival, duty assignments, layout, arms storage protocols,
and personnel sleeping arrangements. He acknowledged a
departmental action against himself and others but denied giving
false evidence or that the accused was made a scapegoat. He
maintained that the deaths were not due to a Naxalite attack. Minor
suggestions regarding visibility from duty posts, exact sequences,
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
18/86
and camp logistics were put, but no material contradiction
emerged affecting the substratum of his testimony.
27. PW-6, a Constable in CRPF Company F/198, was
off-duty and sleeping in a room adjacent to the Kote room at the
Scheduled Caste school hostel in Raipur Chaur on the night of
08/09.10.2010.
28. In his examination-in-chief, PW-6 deposed that at
around 5:15 a.m. on 09.10.2010, he was awakened by gunfire,
armed himself, and took position at the main gate. He saw
Constable Rahul Kumar, armed with an AK-47 in hand and an
INSAS slung over his shoulder, emerging from the direction of S.I.
R.N. Pandey’s room declaring, “Maine jo karna hai wah kar liya
hai, tum log position mat lo” (I have done what I had to do, you
guys should not take position). The accused then ascended to the
rooftop. PW-6 noticed smoke emanating from Assistant
Commandant Rohit Raj Diwana’s room, entered it, and found the
deceased lying drenched in blood on his bed; Inspector Ram Lal
Sah was present, attempting to make a phone call and stating that
the accused must have shot him. On the rooftop, in the presence of
several personnel, the accused abused the deceased officers,
referencing their late-night orderly room conduct “Rohit Raj
Diwana tatha Pandey saheb raat mein kacchi baniyan mein orderly
room lene wala kaun hota hai?” (Who are Rohit Raj Diwana and
Pandey sir to take the orderly room at night in just an underwear?),
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
19/86
leading PW-6 to suspect similar harm to Pandey. He proceeded to
Pandey’s room and found the deceased shot and lying face down,
with S.I. Hasan Ali standing outside trembling. Back on the
rooftop, the accused directed that the Kote register be sent up,
entered an AK-47 and ammunition in his name, and had his
INSAS rifle and magazines sent down via Constable Mrityunjay
Khan. PW-6, along with Constables Mandeep Singh, Virendra
Kumar, and Havaldar Babu Ram, apprehended the accused on the
rooftop while he was on the phone; the accused was subsequently
handed over to the civil police along with the weapons. PW-6
attributed motive to an earlier argument at Kulhariya railway
station over khichdi. He identified the accused in court (noting
abusive language from the dock during testimony).
29. In cross-examination, PW-6 clarified details of
sleeping arrangements, duty protocols, camp layout, and his
subsequent career (leaving CRPF for Assam Police approximately
one year later with verbal permission). He denied facing
departmental action, fabricating evidence, or any impropriety in
his career transition. No material contradictions emerged regarding
visibility, sequence of events, or his actions post-incident.
30. PW-7, the Company Clerk (Munshi) in CRPF
Company F/198, was off-duty and sleeping in the camp at the
Scheduled Caste school hostel in Raipur Chaur at the material
time. In his examination-in-chief, PW-7 deposed that at around
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
20/86
5:15 a.m. on 09.10.2010, he was awakened by gunfire from the
north side, followed seconds later by further firing from the south
(near S.I. R.N. Pandey’s room). He armed himself and took
position. He then heard Constable Rahul Kumar (the accused)
shouting from the rooftop: “Jo mujhe karna tha kar liya hai, kisi ko
mujhe koi dushmani nahi hai, tatha Rohit Raj Diwana tatha R.N.
Pandey jo maine kaam tamam kar diya hai”, (I have done what I
had to do, I have no enmity with anyone and I have finished the
work of Rohit Raj Diwana and R.N. Pandey). PW-7 proceeded to
the deceased Assistant Commandant’s room and observed him
lying on the cot drenched in blood with AK-47 empty cartridges
scattered. He then went to S.I. Pandey’s room, where the deceased
was similarly found in a pool of blood; S.I. Hasan Ali and 20-25
personnel were present outside, stating that the accused had shot
Pandey with an AK-47 before ascending to the rooftop. PW-7
stated that the accused stole Constable Suresh Chandra’s AK-47
(while the latter slept on the roof) to commit the murders and
subsequently manipulated the Kote register to regularise the
weapon in his name while returning an INSAS. After about 1¼
hours, personnel including Mandeep, Bhupen, Babu Ram, and
Chandrakant apprehended the accused on the rooftop and handed
him over to the civil police. PW-7 attributed motive to the late-
night orderly room reprimand on 08.10.2010 (in groups) of 27
personnel, including the accused, for not eating khichdi, in the
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
21/86
presence of both deceased officers and Inspector Ram Lal Sah. He
identified the accused in court.
31. In cross-examination, PW-7 clarified details of
company strength (approximately 76 personnel), sleeping
arrangements, orderly room procedures, and the absence of any
formal CRPF report or interrogation by senior officers arriving
post-incident. He denied facing departmental action, promotion
issues, or any pressure to depose falsely. No material
contradictions were elicited regarding the sequence of events, the
accused’s rooftop declaration, or the common talk among
personnel attributing the murders to the accused.
32. The testimony of PW-7 provides further independent
corroboration of the accused’s open rooftop confession
immediately after the gunfire, explicitly admitting to having
“finished the work” of both deceased officers and disclaiming
enmity with others. This spontaneous declaration, heard in the
presence of multiple personnel, constitutes a reliable extra-judicial
confession, consistent in content and timing with the accounts of
PW-2 to PW-6. His evidence is materially corroborated by uniform
testimony of prior witnesses regarding the accused’s rooftop
admissions, threats/assurances, and Kote register manipulation, the
theft and use of Suresh Chandra’s AK-47 (consistent with PW-3
and PW-4), recovery of AK-47 empties from both rooms, and the
established motive of prior collective and individual reprimand
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
22/86
(khichdi refusal and late-night orderly room). In his examination-
in-chief, PW-8 deposed that at around 5:15 a.m. on 09.10.2010, he
was awakened by gunfire and immediately proceeded to the room
of S.I. R.N. Pandey and S.I. Hasan Ali opposite his own. He found
Hasan Ali shivering on his bed and the deceased Pandey lying face
down, shot and bleeding. Hasan Ali informed him that Constable
Rahul Kumar (the accused) had killed Pandey with an AK-47.
From the rooftop, the accused, armed with an AK-47 in hand and
an INSAS slung over his shoulder, was loudly declaring that he
had killed Company Commander Rohit Raj Diwana and S.I. R.N.
Pandey, that he had done what he intended, and that he had spared
Hasan Ali. PW-8 recounted that Havaldar Anil (frightened by the
initial firing) had hidden near Pandey’s window, whereupon a
bullet shattered the grill and grazed Anil’s head. PW-8 then visited
Diwana’s room and found the deceased lying riddled with bullets.
From the rooftop, the accused directed Inspector Ram Lal Sah to
have the Kote In-Out Register sent up, stating he did not wish to
spoil anyone else’s job; it was established that the AK-47 belonged
to Suresh Chandra. On Ram Lal Sah’s orders, Kote N.C.O. M.L.
Narayan sent the register via Constable Mrityunjay Khan, enabling
the accused to regularise the AK-47 in his name and return an
INSAS rifle with magazines. Subsequently, the accused was
apprehended on the rooftop by Constables Mandeep Singh,
Bhupen Gagoi, Virendra Kumar, and others, brought down, and
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
23/86
handed over to the civil police along with the AK-47 and magazine
after Inspector Ram Lal Sah lodged the FIR. PW-8 proved the
Duty Guard Register entries for 08/09.10.2010 in his handwriting
(marked Exhibit X for identification). He identified the accused in
court.
33. In cross-examination, PW-8 stated that he faced no
departmental inquiry, though questioned by incoming Company
Commander Hemant Kumar 2-3 days post-incident at the camp.
He detailed guard deployments, camp layout, arms protocols, and
personnel movements. He denied any conspiracy, falsity in
evidence, or that the incident was a Naxalite attack, emphatically
rejecting suggestions that the accused was framed to protect the
camp’s reputation or due to inaction.
34. It is ascertained from the evidence of PW 9
Mrityunjay Khan that on 9th October 2010, he had his duty on the
northern side of the roof of the hostel where the CRPF personnel
constituted a temporary camp. At about 5:15 a.m. he heard sound
of repeated firing twice successively and immediately took his
position with his firearm. Some CRPF jawans who were sleeping
on the roof also woke up. Constable Suresh Chandra who was
sleeping on the roof did not find his allotted AK-47 rifle and was
proceeding towards the ground floor to find out his rifle. At that
time the appellant appeared on the roof with AK 47 rifle in his
hand and one INSAS rifle was also hanging on his shoulder. He
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
24/86
was shouting that he killed Rohit Raj Diwana and R.N. Pandey. He
asked Ram Lal (PW-13) to bring the Kote In-and-Out Register
(Arms Register) from Commander M. L. Narayanan. PW-9
brought the said register from M. L. Narayanan and handed it over
to Rahul. Rahul then struck off the entry name of the firearm
(INSAS rifle) that had been allotted to him and entered the name
of “AK-47” against his name in the Arms Register. He also told
PW 9 to deposit the INSAS rifle to the armoury. PW 9 received the
INSAS rifle and Kote Register from the appellant and handed over
them to ML Narayanan. After about one and a half to two hours,
the appellant was apprehended by certain jawans and the AK-47
rifle was snatched away from him. In the meantime, the police
arrived at the place of occurrence. Thereafter, the appellant was
handed over to the police along with the offending arm
35. PW 10 Hasan Ali did not support the prosecution
case and he was declared hostile.
36. PW 12 Anil Kumar Singh is also a CRPF personnel,
he also received injury in the said incident but he also did not
support the prosecution case.
37. PW-11 and PW-17 examined the seized offending
weapon. PW-11, in his report, stated that the seized AK-47 rifle
was in working condition and capable of firing. PW-17, on
microscopic examination, linked the fired cartridge with the seized
rifle; however, he was unable to determine the time of firing.
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
25/86
38. PW 14 conducted postmortem examination over the
dead bodies of Rohit Raj Diwana and R.N. Pandey and submitted
his report.
39. PW 16 is the Investigating Officer of this case.
40. This is all about the evidence on behalf of the
prosecution.
41. After examination of the witnesses on behalf of the
prosecution, the accused was examined under Section 313 of the
CrPC. He denied the prosecution case and claimed his innocence.
42. From the cross-examination of the witnesses on
behalf of the prosecution, it is also ascertained that on the night of
8th October 2010, there was resentment with regard to the food
prepared for the dinner. About 17 members of CRPF jawans
refused to take dinner and Rahul Kumar was one of them. After
the deaths of Rohit Raj Diwana and R.N. Pandey, Rahul was
falsely implicated with the charge of committing murder of the
said two officers of CRPF as he showed his displeasure over the
nature of food served in dinner on 8th October 2010.
43. Mr. Ajay Thakur, learned Advocate on behalf of the
appellant submits that nobody saw the appellant taking resort to
firing upon deceased Rohit Raj Diwana and R.N. Pandey. PW-13,
Ram Lal, saw him fleeing away from the door of Room no. 7
towards southern side where deceased Rohit Raj Diwana and PW-
13 were sleeping. From the evidence on record, it is ascertained
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
26/86
that S.I. R.N. Pandey was sleeping in southern side room with
Hasan Ali. Hasan Ali also did not see the appellant firing at S.I.,
R. N. Pandey. Therefore, it is urged by the learned Advocate for
the appellant that there was no eye-witness of the occurrence.
44. Learned Advocate on behalf of the appellant next
argues that there were in all 76 officers and jawans in the
company. Some of them were sleeping in the hostel, few of them
were guarding the hostel premises at different strategic points
when the incident occurred. The appellant resorted to firing twice,
allegedly with the help of AK-47 rifle. Surprisingly enough,
nobody saw him while he was allegedly firing.
45. Mr. Thakur next submits that the offending weapon
was not allotted to Rahul Kumar. The prosecution cooked up a
case that the said AK-47 rifle was allotted to one CRPF Jawan
named Sushil Chandra. The said Sushil Chandra was sleeping on
the roof, keeping the AK-47 rifle by his side. According to the
prosecution, Rahul selectively took the said rifle and committed
the murder of two CRPF officers by firing.
46. PW-9, Mirtyunjay Khan stated in his evidence that
he was performing his duty from 4 AM to 6 AM on the northern
side of the roof of the said hostel. Suddenly, he heard the sound of
“Burst firing”. He immediately took position. Hearing the sounds
of repeated firing, the CRPF Jawans who were sleeping on the roof
after performing their duties woke up and Sushil Chandra found
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
27/86
that his AK-47 rifle was missing. Prosecution did not take any
attempt to cross-examine Sushil Chandra to prove that he was
allotted with one AK-47 rifle and it was missing on the date and
time of occurrence. Thus, prosecution withdrew a vital witness
during trial of the case.
47. Learned counsel for the appellant, Mr. Thakur,
further submits that the original Arms Register has not been
marked Exhibit during trial of the case. It is not disputed that the
appellant was allotted with one INSAS rifle. Prosecution’s version
is that he took over possession of AK-47 rifle allotted to one Sushil
Chandra who was sleeping on the roof keeping his firearm by his
side. After committing the offence, Rahul Kumar allegedly told
PW-9 to bring the Arms Register and he cut down/struck off the
name of the firearm (INSAS Rifle) allotted to him to perform his
duty and wrote AK-47 rifle on that place with butt number on the
Register. The Investigating Officer did not take attempt to examine
the entry in question with the admitted handwriting of the
appellant. The defence took up a plea that the CRPF Officers and
some jawans who falsely implicated the appellant, made
manipulation of entries in the Arms Register to implicate the
accused. Thus, the prosecution failed to prove that the appellant
himself wrote the name and number of AK-47 rifle against the
name in the Arms Register.
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
28/86
48. Mr. Thakur also argues that in order to implicate the
appellant, prosecution manufactured a fabricated story of
extrajudicial confession allegedly made by the appellant when he
shouted from the roof that he had killed Rohit Raj Diwana and
R.N. Pandey. He had done his job what he had to do and he would
not commit any harm to any other person. It is urged by Mr.
Thakur that such an extra-judicial confession is an extremely weak
piece of evidence. Had the appellant made any such utterances
after the incident, the informant would have mentioned the same in
his fardbeyan. But such an important circumstance, amounting to a
confession by the appellant, was not stated to the police by the
informant in his fardbeyan. According to Mr. Thakur, this is a
material omission in the FIR, and the evidence of the making of an
extra-judicial confession by the appellant, as deposed by the
above-named witnesses, cannot be taken into consideration.
49. Mr. Thakur also submits that the accused was
arrested empty-handed. There is no assertion or positive evidence
regarding the time when the offending weapon was snatched away
from the alleged possession of the appellant, who handed over the
offending weapon to the I.O., and when it was seized.
50. Mr. Thakur next takes us to the examination of the
appellant under Section 313 of the CrPC. It is submitted by him
that the examination of the accused under Section 313 of the CrPC
was absolutely improper and bad in law. It was the duty of the trial
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
29/86
court to put all incriminating circumstances appearing against the
appellant in the evidence adduced by the prosecution, in order to
give him an opportunity to explain those circumstances. The
provision contained in Section 313 of the CrPC was enacted with
the salutary principle of audi alteram partem.
51. The learned Trial Judge did not even ask about any
of the alleged circumstances which he took into consideration in
the impugned judgment to hold the appellant guilty.
52. Lastly, Mr. Thakur submits that there were serious
lapses in the investigation. Prosecution has failed to prove who
made over-writings in the Arms Register. The Investigating Officer
did not try to examine any independent witness. No videography
was made of the place of occurrence, the arrest of the accused, or
the recovery of the firearm. The Investigating Officer did not take
any attempt of scientific re-construction of the incident. The
custody of the weapon was not proved due to incomplete
documentation. According to him, such lapses materially affect the
reliability of the prosecution’s case and weaken the chain of
circumstances.
53. On the grounds recorded above, the learned counsel
for the appellant has prayed for allowing the appeal, reversing the
order of conviction and sentence passed against the appellant.
54. The learned Advocate on behalf of the State
respondent, on the other hand submits that during trial, prosecution
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
30/86
satisfactorily proved the charge against the appellant. It is
submitted by the learned Advocate on behalf of the State that the
incident took place in the early morning of 9 th October 2010, when
most of the officers and jawans of CRPF were sleeping. Some of
the CRPF personnels were performing duties on the gate, roof and
other strategic points of the hostel where they temporarily camped
to perform Election Duties of 2010 Assembly Election. The
appellant committed murder of two officers of CRPF who were
sleeping by resorting to firing from a AK-47 rifle. The offence was
so stealthily accomplished that nobody could see the appellant
firing at the deceased Rohit Raj Diwana or R.N. Pandey. The
roommate of the deceased Rohit Raj Diwana, namely, Ram Lal
(PW-13), woke up on hearing the sound of repeated firing and saw
the appellant fleeing away from the door of Room No. 7, where
the deceased Rohit Raj Diwana and PW-13 were sleeping, with an
AK-47 rifle, towards the southern side. In quick succession, he
again heard the sound of ‘burst firing’ coming from the southern
side. He rushed to the southern side of the hostel and found the
appellant with AK-47 rifle in his hand running towards the
staircase situated at the extreme southern side of the hostel leading
to the roof.
55. The learned APP for the State further submits that at
the relevant point of time, the area around Raipur Chaur was
considered a disturbed area due to Naxalite movement. Most of the
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
31/86
jawans and officers initially thought that there was some Naxalite
attack on the CRPF personnel. They only came to know that the
appellant had committed the murder of two CRPF officers when
the appellant declared from the roof of the hostel that he had killed
the above-named officers and had done the job he was supposed to
do. He asked the other jawans not to take position because he did
not have any grudge against them.
56. The learned APP also submits that the appellant had
no repentance even after commission of offence as the appellant
asked PW-11 to bring “Kote Register” and made certain
manipulations in the said register by cutting down/striking off the
name and nature of rifle which was allotted to him and recording
the name and number of AK-47 rifle against his name with the
help of which he committed murder of above-named two officers.
The evidence of all the witnesses of the incident was consistent
and there was no material contradiction in their evidence. From the
evidence of the CRPF personnel, it appears that the appellant was
sitting on the roof for about two hours. He was asked to surrender,
but he did not. After about two hours, some CRPF personnel
managed to apprehend him and snatched away his AK-47 rifle and
handed over the same to the Commandant In-Charge of Armoury
(Kote Commandant). The appellant was handed over to police and
the offending weapon was seized from the possession of ML
Narayanan (PW-4). PW-1 proved the Seizure List and his signature
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
32/86
on the Seizure List and Inquest Reports of the deceased marked as
exhibits 1, 2, 3/A and 4 to 5A respectively. Fardbeyan of Inspector,
CRPF Ram Lal (PW-13) which was recorded by PW-16, i.e., S.I.
Ajay Kumar, SHO Baddi OP, on 9 October 2010 at 7:30 AM, was
also exhibited during trial of the case. There was no material
contradiction or omission between Fardbayan and the evidence of
PW-13.
57. It is further submitted by the learned APP that in his
initial statement, PW-13 did not state that the appellant himself
declared from the roof of the hostel that he had committed murder
of Rohit Raj Diwana and RN Pandey. He had done what he
required to do and there was no need for his fellow jawans to take
position against him. According to the learned APP, the FIR is not
an encyclopedia of incident, omission to state the said fact by the
informant cannot be considered as material omission amounting to
contradiction, therefore, the appellant cannot take advantage of
such omission in the FIR.
58. The learned APP further submits that the prosecution
was able to prove that the deceased Rohit Raj Diwana and R.N.
Pandey died of gunshot injuries, as per the postmortem report
prepared by PW-14, Dr. Arvind Kumar Singh. The offending
weapon was also scientifically examined, and the arms expert
report, as well as the ballistic report, were marked as exhibits,
which proved that the firing was made by the seized weapon.
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
33/86
59. Having heard the learned counsels for the parties and
on careful consideration of the entire evidence on record, we find
that the testimony of PW-1 to PW-13 establishes their presence at
the scene at the relevant point of time and confirms the
approximate time of the incident, with gunshots hearing around
5:15 a.m. The evidence on record further proves that the appellant
was apprehended from the roof of the hostel about two hours after
the incident by CRPF personnel. The evidence of PW-1 further
proves the formal seizure memos and Inquest Report, which are
admissible in evidence and led corroboration of recovery of the
firearm from the possession of the In-charge of the Armoury as
well as factum of death.
60. The testimony of PW-2 is that of an ocular witness to
the immediate aftermath of the incident and, crucially, to an
incriminating oral statement made by the accused shortly after the
gun fire. The statement attributed to the accused ” मु झे जो करना था
वो मै ने कर ददया, अब दकसी को कुछ नहीं करना है , तुमलोग पोजीशन
कयों ले रहे हो?” amounts to an extrajudicial statement being a clear
admission of having committed the act in question. The law is
well-settled that an extrajudicial confession, if voluntary, cogent
and corroborated by other evidence, can form the basis of
conviction. The same principle has been reiterated by the Hon’ble
Supreme Court in series of cases including Sansar Chand v. State
of Rajasthan reported in 2010(10) SCC 604. Paragraph nos. 29
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
34/86
and 30 of the aforesaid decision is relevant for our purpose and
quoted below:-
“29. There is no absolute rule that
an extra-judicial confession can never be the
basis of a conviction, although ordinarily an
extra-judicial confession should be
corroborated by some other material [vide
Thimma v. The State of Mysore – AIR 1971 SC
1871, Mulk Raj v. The State of U.P. – AIR 1959
SC 902, Sivakumar v. State by Inspector of
Police – AIR 2006 SC 563 (para 41 & 42),
Shiva Karam Payaswami Tewar v. State of
Maharashtra – AIR 2009 SC 1692, Mohd. Azad
v. State of West Bengal – AIR 2009 SC 1307.
30. In the present case, the extra-
judicial confession by Balwan has been
referred to in the judgments of the learned
Magistrate and the Special Judge, and it has
been corroborated by the other material on
record. We are satisfied that the confession was
voluntary and was not the result of inducement,
threat or promise as contemplated by Section
24 of the Evidence Act.”
61. It is found from the evidence of almost all the
witnesses, except the evidence of two hostile witnesses, that the
appellant told his fellow jawans immediately after the occurrence
that he had accomplished the act which he was required to do, and
there was no need for the jawans to take position against him.
62. It is contended on behalf of the State respondent that
such utterances made by the appellant were in the nature of
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
35/86
extrajudicial which was made spontaneously in the presence of
several personnel immediately after the incident, in a natural
sequence of events, and is corroborated by the circumstances of
the accused being armed with AK-47, his presence on rooftop duty
and the motive suggested (scolding by the deceased). PW-2’s
presence at the main gate at the relevant time is established and
unchallenged. His account of hearing gunfire, initially mistaking it
for a Naxalite attack, is consistent with the environment and the
testimony of PW-1, proceeding to the rooms and observing the
bodies dressed in blood is natural and inspires confidence.
63. On careful perusal of the cross-examination, we find
that, except for a minor discrepancy as to the time of occurrence,
there was no infirmity. Such a discrepancy does not affect the
substratum of his evidence. His identification of the accused in
court is formal and reliable, given prior association in the said
company.
64. Though PW-2 is a colleague of the deceased and the
accused, and departmental proceedings were initiated over the said
incident against several CRPF jawans, including PW-2, he
categorically denied deposing falsely under pressure or to get rid
of departmental action. No material has been brought on record to
substantiate any such version or motive to falsely implicate the
accused. In the absence of independent evidence, discrediting his
version, his testimony cannot be discarded merely on the ground
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
36/86
of being interested witness. In this regard, the decision of the
Hon’ble Apex Court in Thammaraya & Anr. vs. State of
Karnataka, reported in (2025) 3 SCC 590, wherein in paragraph
27 of the aforesaid judgment Hon’ble Supreme Court observed as
under:-
“27. Therefore, this material
omission on the part of the investigating
officer (PW 27) in not conducting a test
identification parade (TI Parade) of the
recovered articles, more particularly
when the case of prosecution is based
solely upon recoveries of these articles,
has created holes in the fabric of the
prosecution story, which are impossible
to mend.”
65. The learned Advocate for the appellant refers to
some portions of the evidence of PW-3 and vehemently urges that
the appellant was not allotted with the offending AK-47 rifle to
perform his duties, he was allotted an INSAS rifle. However, in
the “Kote Register” which is a record of allotment and return of
the arms and ammunition by the jawans, there was series of
manipulations as well as interpolation. It is submitted by the
learned counsel for the appellant that such interpolation and
manipulation in the Arms Register was done only to implicate the
appellant falsely. The prosecution manufactured a story that the
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
37/86
appellant himself cut down the relevant portion where he was
allotted with an INSAS rifle to perform his duty and wrote their
own name and number of AK-47 rifle.
66. However, from the evidence of PW-3, it is
ascertained that his own missing AK-47 rifle was recovered from
the possession of the appellant. Coupled with this fact, the report
of the Arms Expert (PW-17) clearly establishes that the said AK-
47 rifle was used. From the evidence of PW-3, it is further
ascertained that the accused himself made manipulation in the
Arms Register to exchange an INSAS rifle for an AK-47 post-
incident. His presence on the rooftop with an AK-47 rifle, along
with the consistent accounts of PW-2 and PW-3, lends support to
the entire prosecution case.
67. On careful scrutiny of evidence of PW-3, it is
ascertained that the alterations in the official Register, while
raising questions about the procedural irregularities in arms
accounting, do not materially impeach the core of PW-3’s
testimony concerning the confession and evidence on the rooftop.
No evidence has been adduced to show that PW-3 colluded in
post-facto tampering specifically to frame the accused. The
departmental inquiry against him itself does not render his
evidence unreliable in the absence of malice or coercion. The
evidence of PW-3 was duly corroborated by PW-4.
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
38/86
68. The testimony of PW-5 furnishes yet another
independent account of the accused’s spontaneous extra-judicial
confession, proclaimed from the rooftop in the presence of
multiple personnel immediately after the gunfire. The accused’s
declaration that he had accomplished what he intended, that he
alone had killed both officers, coupled with threats and the specific
request for the Kote Register to shield others, constitute a detailed,
voluntary and incriminating admission rendered in circumstances
that makes fabrication highly improbable. An extrajudicial
confession of this nature, when consistent and corroborated by
independent witnesses, is substantive evidence capable of
sustaining conviction. Reference may be made in this regard to the
case of Gura Singh v. State of Rajasthan, reported in 2001 (2)
SCC 205. In paragraph 6 of the aforesaid judgment, the Hon’ble
Supreme Court observed as follows:-
“6. It is settled position of law
that extrajudicial confession, if true and
voluntary, it can be relied upon by the
court to convict the accused for the
commission of the crime alleged.
Despite inherent weakness of
extrajudicial confession as an item of
evidence, it cannot be ignored when
shown that such confession was made
before a person who has no reason to
state falsely and to whom it is made in
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
39/86the circumstances which tend to support
the statement. Relying upon an earlier
judgment in Rao Shiv Bahadur
Singh v. State of Vindhya Pradesh [AIR
1954 SC 322 : 1954 SCR 1098 : 1954
Cri LJ 910] this Court again in Maghar
Singh v. State of Punjab [(1975) 4 SCC
234 : 1975 SCC (Cri) 479 : AIR 1975
SC 1320] held that the evidence in the
form of extrajudicial confession made
by the accused to witnesses cannot be
always termed to be a tainted evidence.
Corroboration of such evidence is
required only by way of abundant
caution. If the court believes the witness
before whom the confession is made and
is satisfied that the confession was true
and voluntarily made, then the
conviction can be founded on such
evidence alone. In Narayan
Singh v. State of M.P. [(1985) 4 SCC
26 : 1985 SCC (Cri) 460 : AIR 1985 SC
1678] this Court cautioned that it is not
open to the court trying the criminal
case to start with a presumption that
extrajudicial confession is always a
weak type of evidence. It would depend
on the nature of the circumstances, the
time when the confession is made and
the credibility of the witnesses who
speak for such a confession. The
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
40/86retraction of extrajudicial confession
which is a usual phenomenon in
criminal cases would by itself not
weaken the case of the prosecution
based upon such a confession.
In Kishore Chand v. State of
H.P. [(1991) 1 SCC 286 : 1991 SCC
(Cri) 172 : AIR 1990 SC 2140] this
Court held that an unambiguous
extrajudicial confession possesses high
probative value force as it emanates
from the person who committed the
crime and is admissible in evidence
provided it is free from suspicion and
suggestion of any falsity. However,
before relying on the alleged confession,
the court has to be satisfied that it is
voluntary and is not the result of
inducement, threat or promise envisaged
under Section 24 of the Evidence Act or
was brought about in suspicious
circumstances to circumvent Sections 25
and 26. The court is required to look
into the surrounding circumstances to
find out as to whether such confession is
not inspired by any improper or
collateral consideration or
circumvention of law suggesting that it
may not be true. All relevant
circumstances such as the person to
whom the confession is made, the time
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
41/86and place of making it, the
circumstances in which it was made
have to be scrutinised. To the same
effect is the judgment in Baldev
Raj v. State of Haryana [1991 Supp (1)
SCC 14 : 1991 SCC (Cri) 659 : AIR
1991 SC 37] . After referring to the
judgment in Piara Singh v. State of
Punjab [(1977) 4 SCC 452 : 1977 SCC
(Cri) 614 : AIR 1977 SC 2274] this
Court in Madan Gopal Kakkad v. Naval
Dubey [(1992) 3 SCC 204 : 1992 SCC
(Cri) 598 : JT (1992) 3 SC 270] held
that the extrajudicial confession which
is not obtained by coercion, promise of
favour or false hope and is plenary in
character and voluntary in nature can
be made the basis for conviction even
without corroboration.”
69. The evidence of PW-5 stands circumstantially
corroborated by the consistent accounts of a similar rooftop
confession in the testimonies of PWs 2, 3, and 4, the post-incident
manipulation of the Kote Register, recovery of the AK-47 rifle
from the possession of the appellant, the recovery of empty
cartridges from both crime scenes, and the reinforced motive
arising out of the prior reprimand over the refusal by the appellant
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
42/86
and others to take dinner on the night of 8th October 2010,
followed by prolonged scolding by the two deceased officers.
70. The careful scrutiny of the testimony of PW-6
reveals that he is a direct ocular witness to the critical
incriminating circumstances. His evidence shows that he saw the
accused, armed, emerging out from the vicinity of R.N. Pandey’s
room immediately after the gunfire, accompanied by a
spontaneous declaration amounting to an admission: ‘ मै ने जो करना
था, वो कर ललया।’ Subsequent abusive reference on the rooftop
explicitly linked to the grievance against the deceased, along with
the accused’s active participation in his apprehension, further
corroborate the account. Such oral admissions made by a person in
the immediate aftermath of the incident constitute a reliable extra-
judicial confession when they are natural, voluntary, and consistent
with the surrounding facts. We deem it apposite to refer to the case
of Padala Veera Reddy v. State of Andhra Pradesh & Ors.
reported in AIR 1990 SC 79 where the Hon’ble Supreme Court
held that when a case rest upon circumstantial evidence, the
following tests must be satisfied:-
“10. Before adverting to the
arguments advanced by the learned Counsel,
we shall at the threshold point out that in the
present case there is no direct evidence to
connect the accused with the offence in
question and the prosecution rests its case
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
43/86solely on circumstantial evidence. This Court
in a series of decisions has consistently held
that when a case rests upon circumstantial
evidence such evidence must satisfy the
following tests:
(1) the circumstances from which an
inference of guilt is sought to be drawn, must
be cogently and firmly established;
(2) those circumstances should be of
a definite tendency unerringly pointing
towards guilt of the accused;
(3) the circumstances, taken
cumulatively, should form a chain so complete
that there is no escape from the conclusion
that within all human probability the crime
was committed by the accused and none else;
and
(4) the circumstantial evidence in
order”
71. The evidence of PW-5 receives abundant
corroboration from consistent rooftop confessions and Kote
Register manipulation detailed by PW-2 to PW-5, the accused’s
armed states, composite independent weapon exchange and threats
reported uniformly, reinforced motive of prior reprimand echoed
across witnesses, and the physical state of the crime scenes and
presence of named personnel.
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
44/86
72. PW-6 is one of the personnel who apprehended
accused along with other personnel on the roof of the hostel. The
evidence of PW-7 and PW-8 also corroborates the prosecution
case. The testimony of PW-8 is that of a direct ocular and auricular
to pivotal incriminating events, viz, Hasan Ali’s (turned hostile)
immediate attribution of the shooting to the accused, the accused’s
open rooftop declarations, explicitly admitting the murders of both
officers while sparing another, the weapon manipulation vide Kote
Register and the eventual apprehension. These spontaneous
admission proclaimed loudly from the rooftop and audible to camp
personnel form yet another reliable extra-judicial confession,
voluntary and proximate to the act carrying substantial evidentiary
weight when corroborated. The same principle has been
enunciated by the Hon’ble Apex Court in Pakkirisamy v. State of
Tamil Nadu reported in (1997) 8 SCC 158, paragraph 8 of the said
judgment is reproduced below:-
“8. Mr Murlidhar, learned
counsel then contended that it is well
settled that the evidence of extra-
judicial confession is a weak type of
evidence and ordinarily the court would
be slow to accept such type of evidence.
He therefore, urged that Ex. P-8 be left
out of consideration. We are unable to
accept this broad proposition put forth
on behalf of the appellant. It is well
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
45/86settled that it is a rule of caution where
the court would generally look for an
independent reliable corroboration
before placing any reliance upon such
extra-judicial confession. It is no doubt
true that extra-judicial confession by its
very nature is rather a weak type of
evidence and it is for this reason that a
duty is cast upon the court to look for
corroboration from other reliable
evidence on record. Such evidence
requires appreciation with a great deal
of care and caution. If such an extra-
judicial confession is surrounded by
suspicious circumstances, needless to
state that its credibility becomes
doubtful and consequently it loses its
importance. The same principle has
been enunciated by this Court
in Balwinder Singh v. State of
Punjab [1995 Supp (4) SCC 259 : 1996
SCC (Cri) 59]. In the facts and
circumstances of this case, we hold that
the courts below committed no error in
relying upon Ex. P-8 as the same is
corroborated from several other proved
circumstances.”
73. As Guard Commander, with a proximate sleeping
room and no admitted departmental proceedings against him,
PW’s-8 account is natural, detailed, and free from embellishment.
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
46/86Extensive cross-examination of the witness failed to impeach his
credibility or elicit any material contradiction. We are in agreement
that no witness directly saw the accused firing at either of the
deceased. However, the evidence establishes a clear and consistent
chain of circumstances of the accused being seen armed with AK-
47 rifle immediately after the gunfire, fleeing/moving with the
weapon and taking shelter on the roof of the hostel and making
incriminating declarations. Secondly, regarding the apprehension
of the appellant from the rooftop around 7:30 a.m. after the arrival
of the police at the place of occurrence, the witnesses were
consistent that the apprehending team comprised Hawaldar Babu
Ram (PW-8), Constable Mandeep Singh, Constable Birendra
Kumar, and Constable Bhupen Gagoi/Gosai (PW-6). The evidence
on record also establishes that the offending AK-47 rifle was
snatched or secured from the accused during apprehension.
Constable Mandeep Singh caught hold of the rifle from the front,
while PW-8 and Birendra Kumar restrained the accused from
behind. This fact is elicited from the evidence of PW-6 and PW-8.
Thereafter, the weapon was brought down along with the accused
and handed over to PW-16, i.e., S.I. Ajay Kumar. The said fact
was duly corroborated by PW-3 to PW-8. PW-9 Mirtyunjay Khan
corroborated the evidence of the above-named witnesses in his
examination in chief. It is true that there was some discrepancy in
the evidence of PW-9 and his previous statement recorded by the
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
47/86I.O. under Section 161 of the CrPC, however, the contradictions
referred to by the learned Advocate on behalf of the appellant
cannot be considered to be material one.
74. It is already stated that PW-14, Dr. Arvind Kumar
Singh, conducted the Postmortem examination over the dead
bodies of Rohit Raj Diwana and Rabindra Nath Pandey. The
postmortem reports were marked as Exhibit 13 and Exhibit 14
respectively. The autopsy surgeon found the following injuries in
the body of the deceased Rohit Raj Diwana:-
“Antemortem:- (i) one
circular lacerated wound 1” diameter
into chest cavity deep with inverted
blackened and charred margin below
scapula (left) over back of chest (wound
of entry).
(ii). One lacerated wound
4″x3″ into chest cavity deep with
irregular inverted margin over upper
part of left chest (Exit injury).
(iii) A circular lacerated
wound 1″ in diameter into rib deep over
left infra-scapular region (wound of
entry). On probing communicating to
(iv) a lacerated would 2″x1″ into rib
deep over right mid intra-scapular
region (would of exit).
(v) A circular lacerated
wound 1/2″ in diameter, rib deep over
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
48/86front of right side of chest (with inverted
blackened charred margin (wound of
entry). On probing communicating to
(vi) A lacerated wound 1″x1/3″x rib
deep inverted in irregular margin over
front of left side of chest (wound of exit).
(vii). A circular lacerated
wound 1½” in diameter, into the
abdominal cavity deep, with everted,
blackened, charred margin, over the
right side of the abdomen near the
umbilicus (wound of entry).
(viii) A lacerated wound of
3″x 2″x muscle deep over left joint by
the side of scrotum. On probing pointing
upwards into the pelvic cavity with
irregular everted margin (wound of
exit).
(ix) A circular lacerated
wound 1/2″ diameter X abdominal
cavity deep with inverted blackened
charred margin below ½” of injury no.
(vii) over right side of abdomen (would
of entry).
(x) A lacerated wound 1″x1″
into muscle deep over right joint, on
probing pointing upwards into the pelvic
cavity with irregular everted margin
(wound of exit).
(xi) A circular lacerated
would 1/4″ diameter into muscle deep
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
49/86with inverted charred blackened margin
over left buttock (wound of entry). On
probing communicating to (xii) A
lacerated wound 3/4″ diameter with
everted irregular margin over right
buttock (wound of exit).
(xiii) A circular lacerated
wound ¼” in diameter with everted
charred margin over left buttock (wound
of entry) on probing communicating to
(xiv) A lacerated wound 3/4″ in
diameter with irregular everted margin
over right buttock (wound of exit).
(xv) A circular lacerated
wound 1/4″ in diameter with inverted
blackened charred margin over lateral
aspect of leg knee (wound of entry). On
probing communicating to (xvi) a
lacerated wound with irregular everted
margin 1/2″ in diameter over medical
aspect of left knee (wound of exit).
(xvii) A circular lacerated
wound with inverted blackened charred
margin ¼” in diameter into knee cavity
deep over lower part of left knee (wound
of entry).
(xviii) A lacerated wound
1″x1/extra2″ x knee cavity deep with
irregular everted margin over left
poplited tissue (wound of exit).
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
50/86
(xix) A circular lacerated
wound 1/4″in diameter into muscle deep
over lateral aspect of right thigh with
inverted blackened Charred margin
(wound entry). On probing
communicating to (xx) A lacerated
wound 1/2″ in diameter with irregular
everted margin over medial aspect of
right thigh (wound of exit)
(xxi) Two close circular
lacerated wound with inverted
blackened charred margin each
measuring 1/4″ in diameter X bone deep
at the lateral aspect of right thigh
(wound of entry).
(xxii) A lacerated wound 2½”
x 1″ x bone deep with irregular everted
margin over medial lateral aspect of
right thigh (wound of exit).
(xxiii) Three close circular
lacerated wound with inverted
blackened margin each measuring 1/4″
in diameter on upper part of right leg
(wound of entry).
(xxiv) A lacerated wound 2″ x
1″ x bone deep with irregular everted
margin over lower 1/3 of right leg
(wound of exit)
(xxv) a lacerated wound 4x3x
jt cavity deep over back of left elbow,
upper half of wound shows everted
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
51/86blackened charred margin and lower
half with irregular everted margin join
cavity.
(xvi) A lacerated wound ¼”
in diameter, with inverted, blackened,
charred margins, over the lateral aspect
of the terminal phalanx of the left
middle finger (wound of entry).
(xvii) A circular lacerated
wound with inverted blackened charred
margin ¼” in diameter knee cavity deep
over lower part of left knee (wound of
exit).
(xxviii) A lacerated wound ½”
in diameter, with blackened, charred,
inverted margins, over the right
scrotum, subcutaneous deep (wound of
entry).
(xxix) a lacerated wound
2″x6″ x testes deep with everted margin
on left scrotum (wound of exit).
(xxx) a circular lacerated
wound 1/4″ diameter with inverted
blackened charred margin x muscle
deep over upper part of left upper arm
(wound of exit).
(xxxi) a lacerated wound 3/3″
in diameter x muscle deep over
irregular everted margin over left
Akillia.
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
52/86All wounds oozing blood,
caused by firearms.”
75. The autopsy surgeon also found following injuries in
the body of deceased R.N. Pandey:-
“(i) one circular lacerated
wound 1/4” in diameter with inverted
blackened margin over chest cavity deep
over upper part of the left side of chest
below cavity. (wound of entry)
(ii) a lacerated wound 1/2″
in diameter into chest cavity deep with
irregular inverted margin over left
infra-scapular region (wound of exit).
(iii) A lacerated wound ¼” in
diameter, chest-cavity deep, with
inverted, blackened, charred margins,
over the upper part of the right anterior
axillary fold (wound of entry).
(iv) A circular lacerated
wound ½” in diameter, with irregular
everted margins, over the lower part of
the left side of the chest, near the left
anterior axillary fold, chest-cavity deep
(wound of exit).
(v) A circular lacerated
wound ¼" in diameter x rib deep over
mid third of right posterior Axillary
fold, inverted blackened charred margin
(would of entry) on probity
communicating to (vi) a lacerated
wound ½” in diameter & irregular
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
53/86
everted margin rib deep over lower part
right side of chest ancillary (wound of
exit).
(vii) a lacerated wound 1/4″
in diameter chest cavity deep; inverted
blackened margin over right mid
axillary region (wound of entry)
(viii) a lacerated wound 1/2″
in diameter, irregular, everted margin
over left sub costal region of abdomen.
(ix) a circular lacerated
wound 1/4″ in diameter bone deep,
inverted blackened charred margin over
right buttock (wound of entry)
(x) a lacerated wound 1/2″ in
diameter muscled deep over upper part
of medial side of right thigh, irregular
everted margin (wound of exit).
(xi) a circular lacerated
wound 1/4″ in diameter; inverted
blackened charred margin over mid part
of left upper arm (wound of entry).
(xii) a circular lacerated
wound 1/2″ in diameter; irregular
everted margin over upper part of left
upper arm over shoulder
communicating to injury no. (xi) on
probing (wound of exit), a small
abrasion over post-aspect of lower part
of left upper arm just above elbow.”
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
54/86
76. We have also duly considered the ballistic expert’s
reports which corroborates firing by AK-47 rifle.
77. Learned counsel for the appellant, Mr. Thakur, refers
to a decision of the Hon’ble Supreme Court in the case of
Harjinder Singh @ Kala v. State of Punjab decided on
22.01.2025 in SLP (Crl.) No. 8944 of 2022 to establish that an
extra-judicial confession must be accepted with great care and
caution. If found reliable and convincing, an extra-judicial
confession may be used as corroboration for other evidence to
record conviction of the accused. The evidentiary value of extra-
judicial confession is succinctly discussed in Sahadevan & Anr. v.
State of Tamil Nadu reported in (2012) 6 SCC 403. It is observed
by the Hon’ble Supreme Court in paragraph nos. 14 and 16 of
Sahadevan (supra) as follows:-
“14. It is a settled principle of
criminal jurisprudence that extra-judicial
confession is a weak piece of evidence.
Wherever the court, upon due appreciation of
the entire prosecution evidence, intends to base
a conviction on an extra-judicial confession, it
must ensure that the same inspires confidence
and is corroborated by other prosecution
evidence. If, however, the extra-judicial
confession suffers from material discrepancies
or inherent improbabilities and does not
appear to be cogent as per the prosecution
version, it may be difficult for the court to base
a conviction on such a confession. In such
circumstances, the court would be fully
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
55/86justified in ruling such evidence out of
consideration.
16. Upon a proper analysis of the
above referred judgments of this Court, it will
be appropriate to state the principles which
would make an extra-judicial confession an
admissible piece of evidence capable of
forming the basis of conviction of an accused.
These precepts would guide the judicial mind
while dealing with the veracity of cases where
the prosecution heavily relies upon an extra-
judicial confession alleged to have been made
by the accused:
(i) The extra-judicial confession is
a weak evidence by itself. It has to be examined
by the court with greater care and caution.
(ii) It should be made voluntarily
and should be truthful.
extra(iii) It should inspire
confidence.
(iv) An extra-judicial confession
attains greater credibility and evidentiary
value if it is supported by a chain of cogent
circumstances and is further corroborated by
other prosecution evidence.
(v) For an extra-judicial confession
to be the basis of conviction, it should not
suffer from any material discrepancies and
inherent improbabilities.
(vi) Such statement essentially has
to be proved like any other fact and in
accordance with law.”
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
56/86
78. In Kalinga @ Kushal v. State of Karnataka reported
in 2024 (4) SCC 735, the Hon’ble Supreme Court further
deliberated upon the evidentiary value of extra-judicial confession
and hold thereon:-
“15. The conviction of the
appellant is largely based on the extra-
judicial confession allegedly made by
him before PW 1. So far as an extra-
judicial confession is concerned, it is
considered as a weak type of evidence
and is generally used as a
corroborative link to lend credibility to
the other evidence on record. In
Chandrapal v. State of Chhattisgarh
[Chandrapal v. State of Chhattisgarh,
(2023) 16 SCC 655: 2022 SCC OnLine
SC 705], this Court reiterated the
evidentiary value of an extra-judicial
confession in the following words :
“11. …..this court has
consistently held that an extra-judicial
confession is a weak kind of evidence
and unless it inspires confidence or is
fully corroborated by some other
evidence of clinching nature, ordinarily
conviction for the offence of murder
should not be made only on the
evidence of extra-judicial confession.
As held in State of M.P. v. Paltan
Mallah [State of M.P. v. Paltan Mallah,[
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
57/86(2005) 3 SCC 169 : 2005 SCC (Cri)
674] , the extra-judicial confession
made by the co-accused could be
admitted in evidence only as a
corroborative piece of evidence. In
absence of any substantive evidence
against the accused, the extra-judicial
confession allegedly made by the co-
accused loses its significance and there
cannot be any conviction based on
such extra-judicial confession of the
co-accused.”
16. It is no more res integra
that an extra-judicial confession must be
accepted with great care and caution. If
it is not supported by other evidence on
record, it fails to inspire confidence and
in such a case, it shall not be treated as
a strong piece of evidence for the
purpose of arriving at the conclusion of
guilt. Furthermore, the extent of
acceptability of an extra-judicial
confession depends on the
trustworthiness of the witness before
whom it is given and the circumstances
in which it was given. The prosecution
must establish that a confession was
indeed made by the accused, that it was
voluntary in nature and that the contents
of the confession were true. The
standard required for proving an extra-
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
58/86
judicial confession to the satisfaction
of the Court is on the higher side and
these essential ingredients must be
established beyond any reasonable
doubt. The standard becomes even
higher when the entire case of the
prosecution necessarily rests on the
extra-judicial confession.”
79. On the same issue the learned Advocate on
behalf of the appellant further refers to the decision of the
Hon’ble Apex Court in the case of Nikhil Chandra Mondal v.
State of West Bengal reported in 2023 (6) SCC 605. In this report
also the Hon’ble Supreme Court placed reliance on Sahadevan
(supra). In Nikhil Chandra Mondal (supra), trial court did not
rely upon the extra-judicial confession on the ground that recovery
of blood-stained clothes of the appellant was not established in
accordance with the provision of Section 27 of the Evidence Act
and the recovery of knife being the offending weapon was also not
proved as it was recovered from an open place accessible to all.
The High Court at Culcutta set aside the order of acquittal of the
accused relying on extra-judicial confession. The Hon’ble Supreme
Court held that the extra-judicial confession being a weak piece of
evidence cannot be accepted as the sole ground of conviction
without proof of other circumstances. Thus, the order of conviction
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
59/86
passed by the High Court of Culcutta was set aside and the
appellant was acquitted.
80. Next judgment referred to by the learned Advocate
for the appellant is Neelam Kumari vs The State of Himachal
Pradesh [2025 INSC 1013]. The Hon’ble Supreme Court held in
the aforesaid judgment that extra-judicial confession is a very
weak piece of evidence and in a case based on circumstantial
evidence, the circumstances shall required to be proved beyond
any shadow of doubt. In this regard, the Hon’ble Apex Court
reiterated the principle of probity of circumstantial evidence laid
down in Sharad Birdhichand Sarda v. State of Maharashtra
reported in 1984 (4) SCC 116.
81. It is further contended by Mr. Thakur, that the
appellant was not provided with the opportunity of explaining the
incriminating circumstances allegedly appearing against him by
proper examination under Section 313 of the CrPC. In support of
his argument, he refers to State Naresh Kumar vs. State of Delhi
reported in 2024 SCC OnLine SC 1641. Paragraph nos. 14, 15 and
16 of the above reported judgment are relevant and quoted below:-
“14. In the light of the aforesaid
question posed for consideration, it is only
appropriate to refer to the relevant provisions
under Section 313 (1), (4) and (5).
“313. Power to examine the
accused. — (1) In every inquiry or trial, for
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
60/86the purpose of enabling the accused personally
to explain any circumstances appearing in the
evidence against him, the Court–
(a) may at any stage, without
previously warning the accused put such
questions to him as the Court considers
necessary;
(b) shall, after the witnesses for the
prosecution have been examined and before he
is called on for his defence, question him
generally on the case : Provided that in a
summons-case, where the Court has dispensed
with the personal attendance of the accused, it
may also dispense with his examination under
clause (b).
(2) …
(3) …
(4) The answers given by the
accused may be taken into consideration in
such inquiry or trial, and put in evidence for
or against him in any other inquiry into, or
trial for, any other offence which such answers
may tend to show he has committed.
(5) The Court may take help of
Prosecutor and Defence Counsel in preparing
relevant questions which are to be put to the
accused and the Court may permit filing of
written statement by the accused as sufficient
compliance of this section.”
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
61/86
15. A bare perusal of the provisions
under Section 313 CrPC, extracted above,
would undoubtedly reveal the irrecusable
obligation coupled with duty on Court
concerned to put the incriminating
circumstances appearing in the prosecution
evidence against accused concerned facing the
trial providing him an opportunity to explain.
Sub-Section (5) of Section 313 CrPC, which
was inserted under Code of Criminal
Procedure (Amendment) Act, 2008 (Act 5 of
2009) with effect from 31.12.2009, would lend
support to this view. It reads thus:–
“Section 313. Power to examine the
accused.
***** ***** ***** *****
(5) The Court may take help of
Prosecutor and Defence Counsel in preparing
relevant questions which are to be put to the
accused and the Court may permit filing of
written statement by the accused as sufficient
compliance of this section.”
“16. In this context, the maxim
“actus curiae neminem gravabit” – “the act of
court shall prejudice no one”, has also to be
looked into. In the decision in Oil and Natural
Gas Company Limited v. Modern Construction
and Company, this Court held that the court
has to correct the mistake it has done, rather
than to ask the affected party to seek his
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
62/86
remedy elsewhere. In the context of the
decisions referred above, there can be no
doubt that in a charge for commission of a
serious offence where extreme penalty alone is
imposable in case the accused is found guilty,
procedural safeguards ensuring protection of
right(s) of accused must be followed and at
any rate, in such cases when non-compliance
of the mandatory procedure capable of
vitiating trial qua the convict concerned is
raised and revealed from records, irrespective
of the fact it was not raised appropriately, it
must be considered lest the byproduct of
consideration of the case would result in
miscarriage of justice. Being the Court
existing for dispensation of justice, this Court
is bound to consider and correct the mistake
committed by the Court by looking into the
question whether non-examination or
inadequate examination of accused concerned
caused material prejudice or miscarriage of
justice. We may hasten to add here, that we
shall not be understood to have held that
always such a mistake has to be corrected by
this Court by examining the question whether
material prejudice or miscarriage of justice
had been caused. In this context, the
summarization of law on the subject of
consequence of omission to make questioning
on incriminating circumstances appearing in
the prosecution evidence and the ways of
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
63/86
curing the same, if it is called for, by this Court
in the decision in Raj Kumar @ Suman v. State
(NCT of Delhi)7, assumes relevance.
Paragraph 16 of the said decision reads thus:
—
“17. The law consistently laid down
by this Court can be summarized as under:
(i) It is the duty of the Trial Court to
put each material circumstance appearing in
the evidence against the accused specifically,
distinctively and separately. The material
circumstance means the circumstance or the
material on the basis of which the prosecution
is seeking his conviction;”
(ii) The object of examination of the
accused under Section 313 is to enable the
accused to explain any circumstance
appearing against him in the evidence;
(iii) The Court must ordinarily
eschew material circumstances not put to the
accused from consideration while dealing with
the case of the particular accused;
(iv) The failure to put material
circumstances to the accused amounts to a
serious irregularity. It will vitiate the trial if it
is shown to have prejudiced the accused;
(v) If any irregularity in putting the
material circumstance to the accused does not
result in failure of justice, it becomes a curable
defect. However, while deciding whether the
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
64/86defect can be cured, one of the considerations
will be the passage of time from the date of the
incident;
(vi) In case such irregularity is
curable, even the appellate court can question
the accused on the material circumstance
which is not put to him; and
(vii) In a given case, the case can be
remanded to the Trial Court from the stage of
recording the supplementary statement of the
concerned accused under Section 313 of
CrPC.
(viii) While deciding the question
whether prejudice has been caused to the
accused because of the omission, the delay in
raising the contention is only one of the
several factors to be considered.”
82. Referring to the above-mentioned decision, it is
submitted by the learned Advocate for the appellant, Mr. Thakur,
that the alleged incident took place on 9th October 2010. Since
then, the appellant is in incarceration, therefore, even assuming
that the defect made by the learned trial court by not examining the
appellant properly by putting all incriminating circumstances was
curable, the question to be adjudicated at the present stage is as to
whether the appellant can be called upon to explain the said
circumstances after almost 15 years of incarceration in the
correctional home for such offence. On the same point, he also
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
65/86
refers to the decisions of the Hon’ble Supreme Court in
Raj Kumar @ Suman v. State (NCT of Delhi) reported in
(2023) 17 SCC 95 and Ashok v. State of Uttar Pradesh, reported
in (2025) 2 SCC 381.
83. In paragraph 25 of Ashok (supra), the Hon’ble Apex
Court held as hereunder:-
“25. The date of occurrence is
of 27-5-2009. Thus, the incident is
fifteen-and-a-half years old. After such a
long gap of fifteen-and-half years, it will
be unjust if the appellant is now told to
explain the circumstances and material
specifically appearing against him in
the evidence. Moreover, the appellant
had been incarcerated for about twelve
years and nine months before he was
released on bail. Therefore, considering
the long passage of time, there is no
option but to hold that the defect cannot
be cured at this stage. Even assuming
that the evidence of PW 2 can be
believed, the appellant is entitled to
acquittal on the ground of the failure to
put incriminating material to him in his
examination under Section 313CrPC.”
84. On due consideration of the evidence on record and
having gone through the decision relied on by the learned
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
66/86
Advocate on behalf of the appellant while circumscribing our
conclusion in the instant appeal, we can at the outset, record that
this is a case of circumstantial evidence as nobody saw the
appellant resorting to firing upon the deceased Rohit Raj Diwana
and R.N. Pandey. In Sharad Birdhichand Sarda (supra), the
Hon’ble Supreme Court was pleased to hold that for conviction
based on circumstantial evidence; (i) circumstances must be fully
established, (ii) facts must be consistent only with the guilt of the
accused, (iii) circumstances must be of a conclusive nature, (iv) all
other hypothesis except the guilt must be excluded and, (v) there
must be a complete chain of evidence.
85. Keeping the above principles in mind, let us now
narrate the circumstances which have been held to be proved
against the appellant from the evidences adduced by the
witnesses:-
(i) PW-13, Ram Lal, first heard sound of repeated firing
while he was sleeping. Hearing the sound of firing, he woke up
and saw appellant with a AK-47 rifle in his hand, passing away
from the door of the room where PW-13 and deceased Rohit Raj
Diwana were sleeping. He then saw Rohit Raj Diwana lying dead
on his bed dressed in blood.
(ii) He immediately lifted his firearm and again heard
the sound of repeated firing coming from the southern side of the
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
67/86hostel. He rushed towards the southern side room and found R.N.
Pandey lying dead in pool of blood in the southern side room.
(iii) Hearing the sound of firing all CRPF personnel
woke up and PW-3, Suresh Chandra, who was sleeping on the roof
of the hostel found that his AK-47 rifle was missing.
(iv) The witnesses being the colleagues of the appellant
found him on the roof top with AK-47 rifle which was allotted to
PW-3. The witnesses heard the appellant saying that he had
accomplished the job which he required to do and it is not
necessary for the jawans to take their positions against him.
(v) The appellant directed PW-9 to bring the Kote
Register and himself struck off the entry of the INSAS rifle
recorded against his name and substituted it with an entry of an
AK-47 rifle along with its butt number, with the intention of
shielding and saving other fellow jawans.
(vi) After about two hours of the incident the appellant
was physically apprehended by Hawaldar Babu Ram (PW-8),
Constable Mandeep Singh, Constable Birendra Kumar and
Constable Bhupen Gagoi (PW-6) which was corroborated by PW-
3, PW-4, PW-5 and PW-7.
(vii) After apprehension, AK-47 rifle was snatched or
secured from the accused, Constable Mandeep Singh caught hold
of the rifle from the front while PW-8 and Birendra Kumar
restrained the him from behind. After the weapon being snatched
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
68/86
from the possession of the appellant, both the appellant and the
offending weapon were brought down and handed over to the
custody of PW-16, Ajay Kumar. The postmortem of the deceased
established that Deceased Rohit Raj Diwana received as many as
16 gunshot injuries on his person and the deceased R.N. Pandey
received as many as 12 gun shot injuries on his person.
(viii) The said gunshot injuries were incriminating by
the bullets capable of firing from AK-47 rifle.
(ix) From the Report of the Ballistic Expert (PW-17), it
was ascertained that the seized weapon was used for firing.
86. On the basis of the above-mentioned evidence, the
trial court held the accused guilty and convicted him.
87. On careful scrutiny of the evidence on record, it is
found that during the relevant point of time when one Company
F/198 of CRPF came to perform Assembly Election Duty, the
locality was considered as a disturbed area due to the atrocities by
naxalites. Hearing the sound of ‘burst firing’ most of the witnesses
who are CRPF personnel thought that they were attacked by
naxalite insurgents. It is also found from the evidence that
immediately after hearing the sound of repeated firing the
personnel on guard took their position and the officers and other
personnel of the CRPF who were sleeping woke up and about to
take position with their arms and ammunition.
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
69/86
88. On careful scrutiny of the evidence, it is found that the
informant, PW-13, i.e., Ram Lal for the first time saw the appellant
with an AK-47 rifle in his hand running away through the door of
Room No. 7 where deceased Rohit Raj Diwana and Ram Lal were
sleeping and then found Rohit Raj Diwana lying dead receiving
gunshot injuries, drenched in blood. Immediately, he heard sound
of ‘burst firing’ coming from the southern side of the hostel. He
rushed towards the southern side of the hostel and found S.I. R. N.
Pandey lying dead, receiving gunshot injury. He also saw the
appellant running towards the roof of the hostel following the
southern side staircase with AK-47 rifle in his hand. From the
evidence on record, it is ascertained that the CRPF personnel were
not attacked by naxalite insurgents. All the witnesses who
belonged to the force stated on oath that the appellant committed
murder of the above-mentioned two officers of the CRPF, their
evidence was all through consistent and there is no contradiction in
their evidence and their initial statement recorded under Section
161 of the CrPC.
89. It is true that the FIR was lodged at 10:30 a.m. on 9 th
October 2010, under Section 302/307 of the IPC and Section 27 of
the Arms Act on the basis of a fardbeyan recorded at 7:30 a.m. It is
on record that after the incident the informant intimated the matter
to the higher officials of the Force by mobile phone and thereafter,
he informed the police. The police officer attached to Baddi
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
70/86
Outpost being the nearest police outpost to the place of occurrence
came to the spot and recorded the fardbeyan of PW-13 and
forwarded the same to the S.H.O. Shivsagar P.S. for lodging FIR
under Section 154 of the CrPC. After the fardbeyan reached the
Shivsagar police station, FIR was registered at about 10:30 a.m.
90. Prior to recording the fardbeyan, the witness account is
that the accused/appellant was apprehended by the fellow jawans,
AK-47 rifle was snatched away from his possession and handed
over to the police. The entire chain of event does not create any
suspicious circumstance about appellant’s taking over possession
of the AK-47 rifle which was allotted to PW-3, Suresh Chandra,
who was sleeping on the roof, keeping the said AK-47 rifle by his
side. Witnessing the appellant by PW-13 through the door of
Room No. 7 towards the southern side, hearing the sound of ‘burst
firing’ coming from the southern side, seeing the dead body of
R.N. Pandey in southern side room as well as seeing Rahul Kumar
running towards the roof of the hostel.
91. CRPF jawans who deposed during trial of the case stated
in the same tune that the appellant was shouting and preventing his
colleagues from taking position against him by saying that he had
accomplished the act which he required to do and he killed both
Rohit Raj Diwana and R.N. Pandey.
92. The learned Advocate on behalf of the appellant
vehemently urged that the trial court accepted such evidence
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
71/86
adduced by the witnesses as extra-judicial confession and held the
accused guilty. It is submitted by him that the extra-judicial
confession is a very weak piece of evidence and such a confession
cannot be the sole basis of conviction.
93. We are in agreement with such submission made by the
learned Advocate for the appellant. We also find that the said fact
of making statement by appellant in the nature of confession was
not stated by PW-13 in his fardbeyan. Under such circumstances,
the question that arises for consideration is as to whether it is open
for this Court to hold that the prosecution failed to prove the said
circumstance.
94. It is needless to say that the FIR is not the encyclopedia. It
is no less res integra that FIR does not contain minute details of
the incident. However, omission of a vital fact in the FIR amounts
to contradiction but such contradiction is applicable only against
the maker of the FIR. Such contradiction under the facts and
circumstances of the case cannot vitiate entire prosecution’s case.
During investigation of the case, the statement of CRPF personnel
who deposed in the case was recorded by the I.O. They stated that
the appellant was shouting that he had killed Rohit Raj Diwana
and R.N. Pandey, he had accomplished the work which he required
to do and there was no necessity for the guards to take position
against him, i.e., the appellant. From the evidence on record, it is
found that the appellant made such statement immediately after the
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
72/86
occurrence. Even if the said statement is not accepted as extra-
judicial confession, such evidence is admissible under Section 6 of
the Evidence Act on the principle of res gestae. It is needless to
say that the test of admissibility of evidence as part of res gestae
is:-
(a) Whether the act, declaration, or exclamation, is so
intimately interwoven with or connected to the principal fact or
event it characterizes as to be recorded as part of the same
transaction–i.e., the transaction itself; and
(b) also, whether it clearly negates any premeditation or
purpose to manufacture testimony. The statement of Rahul Kumar,
as deposed to by the witnesses, was made immediately after the
commission of the murder of two officers of the Force. After
committing murder by gunshot injury, he rushed to the roof of the
hostel and told his fellow members of the Force that he had
accomplished his act which he required to do. Such utterances
were made loudly by the appellant within closest proximity of time
act the proximity of place in continuation of the same action to
state the purpose of his act or desire. Therefore, such evidence is
very much admissible following illustration ‘a’ of Section 6 of the
Evidence Act. Thus, we hold the statement made by Rahul Kumar
immediately after the fardbeyan occurrence admitting his action is
a relevant fact and admissible in evidence on the principle of res
gestae provided in Section 6 of the Evidence Act.
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
73/86
95. From the evidence of PW-3, Suresh Chandra, it is found
that after performing his duty he was sleeping on the roof of the
hostel keeping his AK-47 rifle by his side. Hearing the sound of
firing and hue and cry, he woke up and did not find his AK-47
rifle. He immediately found the said rifle in the hand of the
appellant. The said rifle was seized from the possession of the
appellant. On closest perusal of the relevant entries in the Arms
Register, it found that PW-3 was allotted with the A.K. 47 rifle.
Subsequently, such allotment of AK-47 rifle against the name of
PW-3 was struck down and it was entered against the name of
Rahul Kumar. There are manipulations/interpolations in the Arms
Register. The witnesses said that it was done by the appellant
sitting on the roof of the hostel asking PW-9, Mritunjay Khan to
bring Arms Register (Kote Register) and making entry of AK-47
rifle in his name cutting down allotment of INSAS rifle against his
name. The witnesses stated on oath that it was done by Rahul
Kumar to shield other colleagues.
96. It is important to note that such act was done even for
short period of the incident, at that point of time also, the appellant
did not want to falsely implicate his fellow members of the Force.
He declared himself as the assailant not only by shouting but also
making necessary interpolation in the Arms Register. This act
forms a part of the same transaction where immediately after the
occurrence, the appellant did not want to shield himself but
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
74/86
decided to take entire burden on his shoulder declaring that he
killed the above-mentioned two officers of CRPF. Therefore, the
above circumstances makes a chain of evidence where there is no
missing link.
97. Coupled with the said fact, the postmortem reports as well
as the ballistic expert’s reports also prove that both the deceased
died receiving injuries by bullets fired from a firearm. It is already
recorded that the autopsy surgeon found as many as 16 number of
bullets injuries in person of Rohit Raj Diwana and 12 numbers of
gunshot injuries in person on R.N. Pandey. The injuries were
inflicted by an automatic rifle because such huge numbers of
injuries cannot be inflicted by an ordinary firearm or revolver. The
injuries were inflicted by automatic firearm. failure on the part of
98. The forensic authorities examined the seized AK-47 rifle
and opined that fires were made by the said rifle.
99. Thus, the chain of events in the instant case is so
complete that no link is missing, and it is wholly inconsistent with
the innocence of the appellant. On the contrary, it is fully
consistent with the appellant’s guilt.
100. Now comes the last question with regard to the failure
on the part of the learned Principal Judge to properly examine the
appellant under Section 313 of the CrPC by asking him all the
incriminating circumstances appearing against the appellant from
evidence of the witnesses on behalf of the prosecution. For better
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
75/86
appreciation of the issue, the questions asked to the appellant
under Section 313 of the CrPC and answer thereto are reproduced
below:
“प्रश- आप गववाहहों ककी गववाहकी ससुनवा हह?
उत्तर- जकी हहाँ ।
प्रश- आप पर आररोप हह ककी आप ददिननांक 09.10.2010 करो समय 5.15
बजज अ. दन. रदववद्र नवाथ पनांडजय वरो कवपनकी कमनांडर ररोदहत रवाज दिकीववानवा करो
ए.कज.47 रवाइफल सज ब्रस्ट फवायर कर गरोलकी मवारकर हत्यवा कर ददियवा
दजससज दिरोनहों ककी ममृत्यसु हरो गयकी?
उत्तर- जकी नहहीं।
प्रश- आप पर आररोप यह भकी हह ककी जब आप रदववद्र नवाथ पनांडजय करो
ए.कज.47 रवाइफल सज ब्रस्ट फवायर कर गरोलकी मवार रहज थज वहकी गरोलकी रूम
कज दिदक्षिणकी दखिड़ककी कज एवगल सज पवारकर वहनां खिड़ज हवलदिवार अदनल
कसु मवार दसवह कज दसर कज बवाहरकी दहस्सवा सज लगतवा हआ
सु बवाउवडकी ववाल ममें
टकरवायवा दजससज हवलदिवार अदनल कसु मवार दसवह करो दसर ममें गरोलकी लगवा
दजससज वरो जख्मकी हरो गए?
उत्तर- जकी नहहीं।
प्रश- आपकरो सफवाई ममें क्यवा कहनवा हह?
उत्तर- ममैं दनदिर्दोष हह । मसुझज गलत रूप सज फवसवायवा गयवा हह। ”
101. In the case of Naresh Kumar (supra), the learned
counsel for the appellant argued that before the Hon’ble Supreme
Court that the trial court failed to ask questions under Section 313
of the CrPC on two incriminating circumstances appearing against
the appellant in prosecution, viz, exhortation to do away with their
lives (aaj inko jaan se hi khatam karde) and the evidence that the
‘appellant had caught hold of the deceased Arun Kumar to enable
Mahinder Kumar to Stab him repeatedly with knife’ and they
formed the foundation for holding that the appellant had shared
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
76/86
common intention with the first accused and ultimately, for
holding the appellant guilty with the aid of Section 34 of the IPC,
for the offence under Section 300, IPC, punishable under Section
302 of the IPC.
102. In paragraph nos. 9 and 13 of the aforesaid judgment, it
was observed by the Hon’ble Supreme Court as hereunder:-
“9. In view of the aforementioned core
contentions, we are of the considered view that
we need to consider the other grounds taken
up in the appeal on the merits only if the
appellant could not succeed based on non-
examination under Section 313, Cr.P.C., qua
the appellant. We may consider any other
relevant aspect, circumstance or evidence if we
find that it is required for a proper
consideration and appreciation of the
abovementioned core contention.
13. This position takes us to the next
question as to whether in such circumstances
the contention based on non-
examination/inadequate examination under
Section 313, Cr.P.C., causing material
prejudice qua the appellant can be maintained
at this stage. In this context, it is only
appropriate to refer to the decision of this
Court in Shobit Chamar v. State of Bihar. It
was held therein that where the plea as to non-
compliance of the provisions of Section
313, Cr. P.C., was raised for the first time
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
77/86before the Supreme Court, in case no prejudice
had resulted to the accused was proved, the
trial could not be held as vitiated. In that case,
though the non-compliance was taken for the
first time before the Supreme Court, the
records showed that the relevant portion of the
statement of witnesses were put to the accused
in examination under Section 313, Cr.P.C.,
and, thereupon, the plea was rejected. It is to
be noted that was also a case of murder.”
103. It is needless to say that this Court is the first Court of
Appeal where the appellant has raised the issue of improper
examination of the appellant under Section 313 of the CrPC
causing prejudice to him because he failed to explain the alleged
incriminating circumstances appearing against him.
104. At this stage, it is proper to refer to the relevant
provision under Section 313 of the CrPC.
“313. Power to examine the accused.–
(1) In every inquiry or trial, for the purpose of
enabling the accused personally to explain any
circumstances appearing in the evidence
against him, the Court–
(a) may at any stage, without previously
warning the accused put such questions to him
as the Court considers necessary;
(b) shall, after the witnesses for the
prosecution have been examined and before he
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
78/86is called on for his defence, question him
generally on the case:
Provided that in a summons-case, where
the Court has dispensed with the personal
attendance of the accused, it may also
dispense with his examination under clause
(b).
(2) No oath shall be administered to the
accused when he is examined under sub-
section (1).
(3) The accused shall not render himself
liable to punishment by refusing to answer
such questions, or by giving false answers to
them.
(4) The answers given by the accused
may be taken into consideration in such
inquiry or trial, and put in evidence for or
against him in any other inquiry into, or trial
for, any other offence which such answers may
tend to show he has committed.
[(5) The Court may take help of
Prosecutor and Defence Counsel in preparing
relevant questions which are to be put to the
accused and the Court may permit filing of
written statement by the accused as sufficient
compliance of this section.]”
105. Thus, Section 313 of the CrPC casts an irrecusable
obligation coupled with duty on the trial court to put the
incriminating circumstances appearing in the evidence against the
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
79/86
accused, providing him an opportunity to explain the incriminating
circumstances appearing against him. In the instant case, the trial
court failed and neglected to ask incriminating circumstances
appearing against the appellant while examining under Section 313
of the CrPC.
106. In Naresh Kumar (supra), the Hon’ble Supreme in
paragraphs nos. 21 to 27 held as hereunder:-
“21. We have already held that whether non-
questioning or inadequate questioning on
incriminating circumstances to an accused by itself
would not vitiate the trial qua the accused concerned
and to hold the trial qua him is vitiated it is to be
established further that it resulted in material
prejudice to the accused. True that the onus to
establish the prejudice or miscarriage on account of
non-questioning or inadequate questioning on any
incriminating circumstance(s), during the
examination under Section 313, Cr. P.C., is on the
convict concerned. We say so, because if an accused
is ultimately acquitted, he could not have a case that
he was prejudiced or miscarriage of justice had
occurred owing to such non-questioning or
inadequate questioning.
22. In the light of the above view of the matter,
we are inclined to consider the further question
whether the non-questioning on the aforesaid twin
incriminating circumstances to the appellant during
his examination under Section 313, Cr. P.C., had
caused material prejudice to him. The decision of this
Court in State of Punjab v. Swaran Singh, constrain
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
80/86us to consider one another factor while considering
the question of prejudice. In Swaran Singh’s
case (supra), this Court held that where the evidence
of the witnesses is recorded in the presence of the
accused who had the opportunity to cross examine
them but did not cross examine them in respect of
facts deposed, then, omission to put question to the
accused regarding the evidence of such witnesses
would not cause prejudice to such an accused and,
therefore, could not be held as grounds vitiating the
trial qua the convict concerned. We have already
found that Anil Kumar (PW-7), Smt. Prem Devi (PW-8),
Mrs. Madhu (PW-19) and Anand Kumar (PW-22) have
deposed about the said circumstances. A scanning of
their oral testimonies, available on record, would
undoubtedly reveal that on both the points, on
behalf of the appellants they were cross examined.
23. The position, as above, would take us to the
last question whether material prejudice was caused
to the appellant on account of non-questioning him
on the aforesaid incriminating circumstances and
thereby depriving him an opportunity to explain. This
question can better be considered by referring to
paragraph 31 of the judgment of the Trial Court,
which virtually got confirmance from the High Court
under the impugned judgment. It reads thus:–
“31. As far the part played by accused
Naresh is concerned, this has come in the
evidence of PWs that he (Naresh) is the man,
who called his brother Mahinder and
exhorted “Mahender came out and kill them
today” and thereafter his taking part in the
incident, by catching hold of deceased Arun
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
81/86Kumar, clearly goes to show the common’
intention of the two, i.e. Naresh and Mahinder
and even the Learned Defence Counsel,
cannot be benefited from the above noted
authorities.”
24. It is evident from the afore-extracted
paragraph from the judgment of the Trial Court that
the said conclusion that appellant had shared the
common intention to commit murder of the deceased
Arun Kumar was based only on the aforesaid two
incriminating circumstances which were not put to
the appellant while being questioned under Section
313, Cr. P.C. When the very charge framed against
him, as referred as above, would reveal that there
was no charge of commission of an offence under
Section 300 IPC, punishable under Section 302, IPC,
simplicitor against the appellant whereas the said
charge thereunder with the aid of Section 34, IPC. In
such circumstances, when the finding of common
intention was based on the twin incriminating
circumstances and when they were not put to the
appellant while he was being questioned under
Section 313,Cr. P.C., and when they ultimately
culminated in his conviction under Section 302, IPC,
with the aid of Section 34, IPC, and when he was
awarded with the life imprisonment consequently, it
can only be held that the appellant was materially
prejudiced and it had resulted in blatant miscarriage
of justice. The failure as above is not a curable defect
and it is nothing but a patent illegality vitiating the
trial qua the appellant.
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
82/86
25. Once, the upshot of the discussion is above,
we do not think it proper to deal with the
innumerable grounds raised by the appellant, not
only because it has become unnecessary but also
such consideration may adversely affect the co-
accused whose appeal was also decided under the
very same common judgment impugned in this
appeal.
26. As noticed hereinbefore, the incident in
question occurred more than 29 years ago and the
appellant had already undergone incarceration more
than 12 years. In such circumstances, if he is again
subjected to examination under Section 313, Cr.P.C.,
it would cause further prejudice to him in view of the
patent illegality occurred qua the appellant. Hence,
the conviction of the appellant could not be
sustained.
27. For the aforesaid reasons, the appeal must
succeed. Accordingly, the impugned judgment of the
trial Court and the High Court are set aside qua the
appellant. We make it clear that this judgment would
not disturb the conviction of the other accused. We
also make it clear that this observation shall not be
taken as confirmation of his conviction as it is a
matter which may be dealt with in an appeal, if any,
filed by him. The appellant herein stands acquitted of
the offences alleged against him. If his detention is
not required in connection with any other case, he
shall be released, forthwith.”
107. In Raj Kumar @ Suman (Supra), the Hon’ble Supreme
Court held that if a point in the evidence is considered important
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
83/86
against the accused and the conviction is intended to be based
upon it, then it is right and proper that the accused should be
questioned about the matter and be given an opportunity of
explaining it, if he so desires. Thus, failure to put material
circumstances to the accused amounts to a serious irregularity and
it will vitiate the trial if it is shown to have prejudiced the accused.
However, if any irregularity in putting the material circumstance to
the accused does not result in failure of justice, it becomes a
curable defect under Section 465 of the CrPC. But while deciding
whether the defect can be cured, one of the considerations will be
the passage of time from the date of the incident. In case, where
such irregularity is curable, even the appellate court can question
the accused on the material circumstance which is not put to him
and, further, in a given case the case can be remanded to the trial
court from the stage of recording the supplementary statement of
the accused under Section 313 of the CrPC while deciding the
question whether prejudice has been caused to the accused because
of the omission. The delay in raising the contention is only one of
the several factors to be considered. In this case, the Hon’ble
Supreme Court held that even assuming that the defect or
irregularity was curable, the question as to whether today, the
appellant/accused could be called upon to explain the said
circumstance. More than 27 years have passed since the date of the
incident. Considering the passage of time, it will be unjust now at
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
84/86
this stage to remit the case to the trial court for recording further
statement of the appellant under Section 313 CrPC. In the facts of
the case, the appellant cannot be called upon to answer something
which has transpired 27 years back. There is one more aspect of
the matter which persuaded the Supreme Court not to pass an
order of remand. The said factor is that the appellant has already
undergone incarceration for a period of 10 years and 4 months.
108. On the basis of such circumstances, the Hon’ble
Supreme Court held that the conviction of the appellant was
vitiated in the facts of the case, the option of remand will be unjust
and, accordingly, the appeal was allowed and the order of
conviction and sentence was set aside. The same principle was laid
down in Ashok Kumar (supra)
109. Though in the instant case, we have come to a finding
that the evidence on record amply establishes the circumstances,
irresistibly pointing at the guilt of the appellant, improper
examination of the appellant under Section 313 of the CrPC
vitiates the trial. It is within our knowledge that the incident took
place on 9th October 2010 when the appellant committed murder of
two innocent officers of CRPF. At the same time, we are not
unmindful to note that the appellant was arrested on the very date
of commission of offence and he is under incarceration for more
than 15 years.
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
85/86
110. Considering such aspect of the matter, we do not like to
remand the case back to the trial court for re-examination of the
accused under Section 313 of the CrPC.
111. We are conscious of our decision because we have
decided the case on merit and on careful examination of witnesses,
we have found that the prosecution was able to prove all the
circumstances forming a chain without missing any link consistent
with the guilt of the accused. Therefore, we are of the view that for
the error committed by the learned Trial Judge in examining the
appellant/accused properly under Section 313 of the CrPC
requiring him to explain all the incriminating circumstances
appearing against him, the appellant cannot be straightaway
acquitted of the charge, therefore, while confirming the impugned
judgment of conviction and sentence, we direct the appellant to
move before the State Sentence Review Board, Bihar, by filing an
application for premature release.
112. Further, if such application is filed, the State Sentence
Review Board shall decide the question dispassionately in its
proper perspective considering the fact that the accused/appellant
is in incarceration for more than 15 years and in case of Life
Imprisonment also, a convict is entitled to make such prayer for
premature release after 14 years of his custody.
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026
86/86
113. With the above observation, the instant Criminal Appeal
(DB) No. 331 of 2018 is disposed of on contest. However, there
shall be no order as to cost.
(Bibek Chaudhuri, J)
I agree.
Dr. Anshuman, J:
(Dr. Anshuman, J)
suraj/-
AFR/NAFR NAFR CAV DATE 12.01.2026 Uploading Date 18.02.2026 Transmission Date 18.02.2026
