Patna High Court
Rajesh Kumar @ Rajesh Kumar Nut @ Firoj … vs The State Of Bihar on 19 February, 2026
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.441 of 2023
Arising Out of PS. Case No.-361 Year-2019 Thana- RIVILGANJ District- Saran
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Rajesh Kumar @ Rajesh Kumar Nut @ Firoj Nut, Son of Ful Nut, Resident of
Village Takiapar, PS- Manjhi Also At Rivilganj Nut Toli, PS- Rivilganj,
Saran. ... ... Appellant
Versus
1. The State of Bihar
2. Mangali Devi, Wife of Mangal Bind, Resident of Village- Naya Basti, Bind
Toli, PS- Rivilganj, Dist- Saran.
... ... Respondents
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Appearance :
For the Appellant : Mr. Nachiketa Jha, Advocate
For the State : Mr. Satya Narayan Prasad, Addl.PP
For the Informant/ Resp No. 2 : None
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CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE PRAVEEN KUMAR
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 19-02-2026
We have heard learned counsel for the appellant and
learned Additional Public Prosecutor for the State.
2. Despite service of notice on the informant-
Respondent No. 2, no one has entered appearance to oppose the
appeal.
3. This appeal has been preferred for setting aside the
judgment of conviction dated 27.01.2023 (hereinafter referred to
as the 'impugned judgment') and the order of sentence dated
03.02.2023
(hereinafter referred to as the ‘impugned order’)
passed by learned Additional Sessions Judge-VI-cum-Exclusive
Special Judge, POCSO Act, Saran at Chapra (hereinafter referred
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to as the ‘learned trial court’) in ST POCSO No. 20 of 2020 arising
out of Rivilganj P.S. Case No. 361 of 2019. By the impugned
judgment, the appellant has been convicted for the offences
punishable under Sections 302, 376 and 363 of the Indian Penal
Code (in short ‘IPC‘) and Sections 4 and 6 of the Protection of
Children from Sexual Offences Act (in short ‘POCSO Act‘) and
vide impugned order dated 03.02.2023, shas been sentenced to
undergo twenty years rigorous imprisonment with a fine of
Rs.25,000/- under Section 4 of the POCSO Act and in default of
payment of fine, he has to further undergo one year simple
imprisonment. He has also been ordered to undergo twenty years
rigorous imprisonment with a fine of Rs.25,000/- under Section 6
of the POCSO Act and in default of payment of fine, he has to
further undergo one year simple imprisonment. Further, the
appellant has been directed to undergo imprisonment for life and
to pay a fine of Rs. 25,000/- under Section 302 IPC and in default
of payment of fine, he shall undergo one year simple
imprisonment. The appellant shall also undergo rigorous
imprisonment for five years with a fine of Rs. 10,000/- under
Section 363 IPC and in default of payment of fine, he shall
undergo simple imprisonment for six months. All the sentences are
to run concurrently.
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Prosecution Case
4. The prosecution case is based on the fardbeyan of the
informant (PW-7). In her fardbeyan, she has alleged that on
17.11.2019, between 5:00-6:00 PM, her ten years old daughter ‘X’
was playing with other girls near Maharani Asthan Educate School
in the temple courtyard. At about 5:30 PM, three unknown men
allegedly came there and tried to take the girls towards orchard by
offering sweets. It is alleged that when the girls resisted, the
accused persons tried to drag them forcibly but three girls
somehow managed to escape and informed their families, after
which a search was conducted and the local administration was
informed. On 18.11.2019, the dead body of ‘X’ was found in a
water pond in the mango orchard of Badan Rai. The girls who
managed to escape described the accused persons as men aged
about 20-30 years, they used to visit the temple daily and they
could recognise them if they see the accused persons. The
informant suspected that her daughter was murdered by unknown
persons and that another girl has also been murdered. The murder
of informant’s daughter has been committed by conspiracy and to
conceal this murder, the dead body was thrown into the pond.
5. On the basis of this fardbeyan, FIR being Rivilganj
P.S. Case No. 361 of 2019 dated 18.11.2019 was registered under
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Section 302 IPC against unknown. After investigation, police
submitted chargesheet bearing Chargesheet No. 22 of 2020 dated
21.02.2020 under Sections 363, 376(G), 302 and 120(B)/34 IPC
and Sections 4/6 of the POCSO Act against Rajesh Nut @ Rajesh
Kumar @ Firoj Nut. Learned trial court vide order dated
28.02.2020 took cognizance of the offences punishable under
above-mentioned Sections against the appellant.
6. Charges were read over and explained to the appellant
to which he denied and claimed to be tried, accordingly, vide order
dated 04.03.2021, charges were framed under Sections 302, 363,
376(2)G, 120(B) IPC and Sections 4/6 of the POCSO Act against
the appellant Rajesh Nut @ Rajesh Kumar @ Firoj Nut.
7. In course of trial, the prosecution has examined
altogether eleven witnesses and exhibited several documentary
evidences. The description of the prosecution witnesses and the
exhibits are given hereunder in tabular form:-
List of Prosecution Witnesses
PW-1 Sunil Thakur
PW-2 Friend of victim ‘S’
PW-3 Friend of victim ‘S1’
PW-4 Friend of victim ‘S2’
PW-5 Father of the victim
PW-6 Mukhtar Miyan
PW-7 Mother of the victim
PW-8 Harishchand Prasad
PW-9 Shailendra Kumar
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PW-11 Vijendra NarayanList of Exhibits on behalf of Prosecution
Exhibit ‘P-1/PW-1’ Signature of PW-1 on written application
Exhibit ‘P-2/PW-8’ Writing and signature of PW-8 on medical
report
Exhibit ‘P-3/PW-9’ Writing and signature of PW-9 on medical
report
Exhibit ‘P-4/PW-10’ Recognition of writing and signature of
SHO on fardbeyan
Exhibit ‘P-5/PW-10’ Writing and signature of the then SHO on
Formal FIR
Exhibit ‘P-6/PW-10’ Writing and signature of PW-10 on
chargesheet
Exhibit ‘P-7/PW-10’ Writing and signature of SHO on seizure listExhibit ‘P-8/PW-10’ Signature of SHO on sketch
Exhibit ‘P-9/PW-10’ Signature of SHO on sketch
Exhibit ‘P-10/PW-11’ Writing and signature on confessional
statement
8. Thereafter, the statement of the appellant was
recorded under Section 313 of the Code of Criminal Procedure (in
short ‘CrPC‘) in which he took a plea that he is innocent.
9. The defence has not adduced any oral or any
documentary evidence.
Findings of the Learned Trial Court
10. Learned trial court after analysing the evidences
available on the record found that the prosecution case is that the
minor girls were raped and murdered.
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11. Learned trial court found from the evidence of PW-
8 and PW-9 who conducted the post mortem on the dead bodies of
the victim girls that the victims were minor aged about 9 and 10
years respectively.
12. Learned trial court further found that the victim
girls suffered unnatural death as there is evidence of PW-8 who
conducted post mortem of victim ‘X’ that she has been subjected
to rape and died due to asphyxia caused by throttling.
13. Learned trial court found that the friends of the
victim girls PW-2, PW-3 and PW-4, who were playing with the
victim girls when the appellant took them away, identified the
appellant as the same person who had taken away the victim girls.
14. Learned trial court after considering all the facts and
circumstances of the case found that the prosecution has been able to
prove the charges levelled against the appellant beyond all
reasonable doubts by leading credible and clinching evidence.
Accordingly, learned trial court held the appellant guilty of the
offences punishable under Sections 4 and 6 of the POCSO Act and
Sections 302, 376 and 363 IPC.
Submissions on behalf of the Appellant
15. Learned counsel for the appellant while assailing the
impugned judgment and order submits that the learned trial court
has erred in appreciating the evidences available on the record
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16. Learned counsel for the appellant submits that the
whole prosecution story is based on the evidence of the three girl
child witnesses (PW-2, PW-3 and PW-4) who were accompanying
the victims while they were playing. Learned counsel submits that
the learned trial court has not recorded the preliminary questions
put to them to test their competence but has recorded in a general
statement that they are competent to depose.
17. Learned counsel submits that all these three
witnesses are giving different statements, contradicting each other
and are not consistent with the prosecution case. Learned counsel
also submits that despite the fact that the appellant is a co-villager,
these witnesses did not disclose the name of the appellant to her
parents at the earliest opportunity. Their statements were not
recorded under Section 164 CrPC.
18. Learned counsel submits that the evidence of the
mother of the victim (PW-7) is at much variance with that of the
three girl child witnesses.
19. Learned counsel submits that PW-10 has admitted in
paragraph ’13’ of his deposition that the inquest report of the
victim girls are not on the record. Learned counsel submits that the
time of recovery of the dead body of the victim (X) given by PW-
10 completely differs with the statement of the mother of the
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victim (PW-7) who has stated about the recovery of the dead body
and then recording of her statement at 08:00 AM, thus, PW-10 is
trying to cover up the delay in registration of the FIR.
20. Learned counsel further submits that PW-10 claims to
have gone to the place of occurrence on the basis of a Sanha but
the said Sanha has not been brought on the record, therefore, it is
not clear that what kind of information was received by police at
the first instance, hence, this is a case of suppression of the first
version of the prosecution case.
21. Learned counsel for the appellant submits that the
sketch of unknown killer was made but neither the sketch has been
brought on record nor the name of the sketcher has been disclosed.
22. Learned counsel submits that this is a case of
circumstantial evidence but the prosecution has miserably failed to
establish the chain of events and many questions in this case
remains unanswered by the prosecution. In this regard, learned
counsel has relied upon the judgment of the Hon’ble Supreme
Court in the case of Sharad Birdhichand Sarda vs. State of
Maharashtra reported in (1984) 4 SCC 116 and Dilavar Hussain
and Others versus the State of Gujarat and Another reported in
(1991) 1 SCC 253.
23. Learned counsel submits that the recording of
confessional statement of the appellant which according to the
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prosecution led to the recovery of the dead body of one of the
victims is in complete violation of the judgment of the Hon’ble
Supreme court in the case of Venkatesh @ Chandra & Another
Vs. State of Karnataka reported in (2022) 16 SCC 797.
Accordingly, the confessional statement of the appellant is not
admissible in evidence.
Submissions on behalf of the State
24. Learned Additional Public Prosecutor for the State
has defended the impugned judgment and order of the learned trial
court. It is submitted that the recovery of the dead body of one of
the victims has been made on the basis of the confessional
statement of the appellant. Learned Additional Public Prosecutor
has submitted that the victims were minors and had suffered
unnatural death.
Consideration
25. We have heard learned counsel for the appellant and
learned Additional Public Prosecutor for the State. Despite service
of notice on the informant, no one has entered appearance to
oppose the appeal. The present case arises out of the fardbeyan of
the mother of the victim girl recorded by Prashant Kumar, SHO,
Rivilganj Police Station on 18.11.2019 at about 16 hours at the
home of the informant. In her fardbeyan, she has alleged that on
17.11.2019, between 5:00-6:00 PM, her ten years old daughter ‘X’
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was playing with other girls near Maharani Asthan Educate School
in the temple courtyard. At about 5:30 PM, three unknown men
allegedly came there and tried to take the girls towards orchard by
offering sweets. It is alleged that when the girls resisted, the
accused persons tried to drag them forcibly but three girls
somehow managed to escape and informed their families, after
which a search was conducted and the local administration was
informed. On 18.11.2019, the dead body of ‘X’ was found in a
water pond in the mango orchard of Badan Rai. The girls who
managed to escape described the accused persons as men aged
about 20-30 years, they used to visit the temple daily and they
could recognise them if they see the accused persons. The
informant suspected that her daughter was murdered by unknown
persons and that another girl has also been murdered. The murder
of informant’s daughter has been committed by conspiracy and to
conceal this murder, the dead body was thrown into the pond.
26. To prove the charges against the appellant, the
prosecution brought as many as eleven witnesses. Sunil Thakur
(PW-1) has proved his signature on the application given to the
Officer Incharge of Rivilganj Police Station, however, he has
stated that police had never interrogated him by showing the
sketch and his statement was not recorded by Darogaji. He has
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been declared hostile by the prosecution and has been cross-
examined.
27. In this case, the whole prosecution story is based on
the evidence of the three girls who are said to be accompanying
the victims while they were playing together. The girl, namely, ‘S’
(PW-2) has stated that she was playing with her friends including
the victims near temple when one person came, called the two
victim girls and took them away. The next day she came to know
that both were drowned in the water and they had died. She
claimed that she can identify the person who had taken away the
victim girls. It appears that PW-2 is a child witness. Learned trial
court has not recorded the questions which were put to her in order
to test her competence and understanding to speak the truth. A
general statement has been made that on asking general questions
from the witness, it seems that she is competent to depose. In her
cross-examination, she has stated that in which year she was
admitted in class I was not known to her, she cannot say her date
of birth. She has stated that the person who had taken away the
victim girls by calling them had not said anything to them while
taking away them then she has stated that she along with another
girl had gone behind that person up to Jigna village, there was no
one else with them and she had not told anyone in the Jigna village
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that the said person was taking away her two friends. They had
returned home from Jigna village at about 5’O clock. She could
not tell the distance between Jigna village and her own village but
the defence suggested her that Jigna village is situated at a distance
of six kilometers from Rivilganj, this witness expressed her
unawareness as to this distance. In paragraph ‘9’, she has stated
that the said person had not taken away the victim girls by any
vehicle. In paragraph ’10’, she has stated that she had come to
depose with her bhabhi and her bhabhi had told her as to what are
to be deposed in the court. From her deposition, this Court finds
that this child witness is a tutored witness and since the date of
occurrence till her deposition in course of trial, she was not
produced before the learned Magistrate for recording of her
statement under Section 164 CrPC.
28. The another witness, namely, ‘S1’ (PW-3) is ten
years old girl, again in her case also, the court has not recorded the
questions put to her to test her competence but has recorded in a
general statement that she is competent to depose. This witness has
stated that when the said person started pulling away all of them
who were five in numbers, three of them fled away whereas the
victim girls were taken by the said person. This witness told the
occurrence to her mother and father in her house whereafter they
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had gone in search of the girls and the dead bodies of both the girls
were found near the bridge. Firstly, the dead body of ‘X’ was
found whereafter the dead body of ‘Y’ was found. At the trial, this
witness disclosed the name of the accused as Firoz Nut and said
that she knew that person. In her cross-examination, she has stated
that her statement was recorded by police after two years of the
occurrence, she had never made any statement in court and she had
left the temple, she had not seen anything from her own eyes. It is
evident from the statement of PW-3 that she is at much variance
with the statement of PW-2 who had stated that they had gone
behind the accused till Jigna village. This Court further finds that
PW-3 has stated in her cross-examination that the house of Firoz
Nut is near Dhala, therefore, she identifies her. This Court further
finds that even though this witness claims that she knew the house
of Firoz Nut, she identifies him but she had not disclosed the
identity of this appellant till the time of lodging of the FIR on
18.11.2019 and even after the dead body of victim ‘X’ was found,
the name and identity of the accused was not known to the
prosecution.
29. Further, this Court has noticed from the evidence of
the third girl child witness, namely, ‘S2’ (PW-4) that she is said to
be aged about 11 years but again the trial court has not tested her
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competence as required in law. PW-3 has given the name of
another person, namely, Saryug Nut and has stated that he was
pulling one of the girls ‘Y’ and when ‘X’ went to save then she
was also pulled away. To this court it seems highly improbable that
one person can alone take away two girls by pulling them away
during 3’O Clock. This witness had fled away from there and had
told the story in her house. This Court finds that PW-4 has given
altogether a third story with regard to the manner of occurrence. In
her cross-examination, in paragraph ‘4’ she has stated that
whatever she had stated today with regard to the occurrence, was
not stated to anyone else except the persons in her house. She has
categorically stated that she had not told this fact to police. In
paragraph ‘5’, she has stated that she was near the temple till 03:00
PM whereafter she had returned to her home. In paragraph ‘6’, she
has stated that when the said person was pulling away the victim
girls, he had not talked to her or her friends. On perusal of the
evidence of PW-2, PW-3 and PW-4 this Court has no iota of doubt
that they are giving different statements, contradicting each other,
they are not consistent with the prosecution case and despite the
fact that the appellant is a co-villager, they did not disclose the
name of the appellant to her parents at the earliest opportunity.
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Their statements were not recorded under Section 164 CrPC and
they have been tutored by the prosecution.
30. Mukhtar Miya (PW-6) who is an independent
witness has been declared hostile as he has not supported the
prosecution case.
31. The mother of the victim has been examined as PW-
7. In her examination-in-chief, she has stated that her daughter ‘X’
and another victim ‘Y’ were not found during the search then she
had returned home and on the next day, the dead body of ‘X’ was
found in a ditch in an orchard. Police came and inquired
whereafter Darogaji recorded her statement. She claimed that the
person who had taken away the victim girls had told the witness
‘S’ (PW-2) that if she would not disclose the occurrence to anyone
then he would provide her sweets and PW-2 had disclosed this to
Darogaji. This Court finds that no such statement has been given
by witness ‘S’ (PW-2). PW-7 has stated that on the disclosure
made by the witness ‘S’ (PW-2), Darogaji had arrested Firoz Nut
who confessed his guilt. This Court, however, finds that PW-2 has
not stated so, rather she has stated that she came to know the name
of the appellant after his arrest. In her cross-examination, PW-7
has stated that she had given her statement on the next day at
08:00 AM about the occurrence. Thus, it is evident that her
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statement is said to have been recorded by police at 08:00 AM on
18.11.2019 but the FIR was registered after about 10 hours at
05:15 PM. This witness has stated in paragraph ’11’ that Firoz Nut
is Muslim, he is her co-villager, therefore, she knows him. Firoz
Nut is involved in doing labour work. It is evident from the
deposition of PW-7 that she did not come to know the involvement
of this appellant from any of the three girl witnesses, prior to
recovery of the dead body of her daughter and even after the
recovery of the dead body of her daughter.
32. Dr. Harishchand Prasad (PW-8) had conducted the
post mortem autopsy on the dead body of the victims ‘X’ and had
found the following injuries on her body:-
“On external examination:-
(i) Bruise at side face 1″ x 1/2″.
(ii) Abrasion Right side upper arm 1 ½” x 1/3″.
(iii) Vagina Examination – Redness of labia majora.
(iv) Bleeding spot present on labia majora.
(v) Abrasion on upper lip.
On dissection
(i) Heart – Both chamber full of blood.
(ii) All visceral congested.
Vaginal Swab Examination
(i) Few dead spermatozoa found.
(ii) R.B.C. present/H.P.F.
(iii) Epithelial Cells – a few/H.P.F.”
He has proved the medical report as Exhibit ‘2’. He has
stated that he had done post mortem on the basis of requisition of
police being a medical professional and he did not know from
where the police had brought the dead body.
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33. Shailendra Kumar (PW-9) is the another Medical
Officer who was posted at Sadar Hospital, Chapra on 19.11.2019.
He had conducted the autopsy on the dead body of the another
victim (Y) and had found the following injuries:-
“On External Examination:-
RM(Absent), contusion over lower lip, mud over the
body, B/L eyes closed.
On dissection:-
Neck – trachea intact, fluid (+)
All viscera congested.
Heart – Right chamber full and left chamber empty
Stomach – fluid (+), Washer women sign (+), B/L
palm.
Bladder – empty, uterus – N(normal)
Vaginal swab send for H/P examination
Spermatozoa not found neither alive or dead,
R.B.C. – Nil, few epithelial cells present. (S.No. –
252, dt. 19.11.2019)(*no evidence of rape).”
He has proved the post mortem report of the victim (Y) as
Exhibit ‘3’.
34. Bimlesh Kumar Singh (PW-10) is the Sub-Inspector
of Police who had taken the charge of investigation of the case
from Prashant Kumar the then SHO and had recorded the
restatement of the mother of the victim girl and the other three girl
child witnesses who, according to PW-10 had supported the
prosecution case. He had also inspected the place of occurrence
which is the premises of the temple/Kali temple situated in the
orchard in the middle of Bindh Toli of Naya Basti and Educate
School. This witness has stated that on 17.11.2019 on the written
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information of the mother of the another victim (Y), one case
being P.S. Case No. 360 of 2019 was registered under Section 363
IPC and in course of investigation of the said case on 18.11.2019
at about 18:00 hrs., he had found the dead body of one of the
victim (X) from the ditch and the inquest report was prepared by
Swami Ramji Singh. He had sent the dead body for post mortem.
35. Here, this Court finds that PW-10 has admitted in
paragraph ’13’ of his deposition that the inquest report of the
victim girls are not on the record. This Court finds that the time of
recovery of the dead body of the victim (X) given by PW-10
completely differs with the statement of the mother of the victim
(PW-7) who has stated about the recovery of the dead body and
then recording of her statement at 08:00 AM. This Court,
therefore, finds that PW-10 is trying to cover up the delay in
registering the FIR. This Court has further noticed that according
to PW-10, on the direction of the Senior Officer, on 19.11.2019 to
get the sketch of the unknown killer, one sketcher was called at the
police station and on the basis of the sketch prepared by the said
sketcher, Firoz Nut @ Rajesh Nut was brought at the police station
and on inquiry made by him, he confessed his guilt. This Court
finds that neither the sketch has been brought on record nor the
name of the sketcher has been disclosed much less brought as a
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witness in this Court. PW-10 has, though, stated that on the
disclosure of Rajesh Nut, the dead body of the victim (Y) was
recovered from Sondhi River in Jigna village but at the same time,
it is evident from the records that at the time of so-called recording
of the confessional statement of Rajesh Nut, there was no witness
present in the police station. PW-10 has admitted in paragraph ’27’
of the deposition that at the time of recording of confessional
statement of the accused, he had not called for any Executive
Magistrate or any Judicial Magistrate. It is also evident that PW-10
claims in paragraph ’23’ that the sketcher was called by the SHO
on 19.11.2019 at 06:15 AM, however, this witness was not present
there. PW-10 claims that the sketch was prepared as per the
disclosure by the girl witnesses but in the deposition of the girl
witnesses, namely, PW-2, PW-3 and PW-4, no such statement may
be found. None of them has claimed that they had met any
sketcher and had disclosed the description of the person on the
basis of which the sketch was prepared.
36. This Court further finds that PW-10 claims to have
gone at the place of occurrence on the basis of a Sanha but the
said Sanha has not been brought on the record, therefore, it is not
clear that what kind of information was received by police at first
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instance. This may be a case of suppression of the first version of
the prosecution case.
37. It is evident from the evidences on the record that
one ASI, namely, Vijendra Narayan (PW-11) has also been
examined on behalf of the prosecution. He has gone to the extent
of saying that during investigation, Firoz Nut @ Rajesh Nut had
made confessional statement and on the basis of his confessional
statement both the dead bodies were recovered. This Court finds
that the statement of PW-11 is completely contradictory to the
evidence of other prosecution witnesses, particularly, the mother of
the victim (PW-7) and the Investigating Officer (PW-10). Their
case is that the dead body of the second victim (Y) was recovered
on the basis of the disclosure made by the appellant. PW-11 had
recorded the confessional statement on the oral direction of the
SHO of the police station. In paragraph ‘4’ of his deposition, he
has stated that he was himself identifying the accused, he had not
caught him identifying by anyone. In paragraph ‘5’, he has stated
that there was no one at the time of recording of the confessional
statement. The defence suggested PW-11 that he knew Rajesh Nut,
he was taken into custody and was badly assaulted by police
whereafter he had become injured and then his signature was
obtained on blank sheet of paper and on that a statement was
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recorded. The defence also suggested that it is for this reason that
Rajesh Nut was under treatment in the PMCH. PW-11 though
denied this suggestion of the defence but it would appear that in
course of his statement under Section 313 CrPC, the appellant has
categorically stated in answer to the questions put before him that
police had badly assaulted him and had recorded his statement. He
denied that the dead body was recovered on the basis of his
disclosure.
38. On perusal of the entire evidences available on the
record, we find that the whole prosecution case is based on the
circumstantial evidences. The prosecution witnesses are not
consistent. The appellant was arrested on 19.11.2019 but he was
not medically examined. He was produced in court only on
27.11.2019 as per the statement of the police witnesses. For all
these eight days, where was he kept has not been disclosed but that
has come in the defence suggestion that the appellant was badly
assaulted, he was injured and was admitted in PMCH. In a case of
circumstantial evidence, a complete chain of criminological events
are required to be proved. In this case, the chain is missing.
39. We rely on the judgment of the Hon’ble Supreme
Court in the case of Sharad Birdhichand Sarda (supra).
Patna High Court CR. APP (DB) No.441 of 2023 dt.19-02-2026
22/26
Paragraph ‘152’ of the judgment is being reproduced hereunder for
a ready reference.:-
“152. Before discussing the cases relied upon by the
High Court we would like to cite a few decisions on the
nature, character and essential proof required in a
criminal case which rests on circumstantial evidence
alone. The most fundamental and basic decision of this
Court is Hanumant v. State of Madhya Pradesh 1 . “This
case has been uniformly followed and applied by this
Court in a large number of later decisions up-to- date, for
instance, the cases of Tufail (Alias) Simmi v. State of
Uttar Pradesh17 and Ramgopal v. State of
18
Maharashtra . It may be useful to extract what Mahajan,
J. has laid down in Hanumant case1 :
“It is well to remember that in cases where the
evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt
is to be drawn should in the first instance be fully
established, and all the facts so established should
be consistent only with the hypothesis of the guilt
of the accused. Again, the circumstances should
be of a conclusive nature and tendency and they
should be such as to exclude every hypothesis but
the one proposed to be proved. In other words,
there must be a chain of evidence so far complete
as not to leave any reasonable ground for a
conclusion consistent with the innocence of the
accused and it must be such as to show that within
all human probability the act must have been done
by the accused.”
In the case of Dilavar Hussain (supra) again the Hon’ble
Supreme Court has observed in paragraphs ‘3’ and ‘4’ as under:-
“3. All this generated a little emotion during submissions.
But sentiments or emotions, howsoever strong, are neither
relevant nor have any place in a court of law. Acquittal or
conviction depends on proof or otherwise of the
1. 1952 SCR 1091 : AIR 1952 SC 343 : 1953 Cri LJ 129
17. (1969) 3 SCC 198 : 1970 SCC (Cri) 55
18. AIR 1972 SC 656 : (1972) 4 SCC 625
Patna High Court CR. APP (DB) No.441 of 2023 dt.19-02-2026
23/26criminological chain which invariably comprises of why,
where, when, how and who. Each knot of the chain has to
be proved, beyond shadow of doubt to bring home the guilt.
Any crack or loosening in it weakens the prosecution. Each
link, must be so consistent that the only conclusion which
must follow is that the accused is guilty. Although guilty
should not escape (sic). But on reliable evidence, truthful
witnesses and honest and fair investigation. No free man
should be amerced by framing or to assuage feelings as it is
fatal to human dignity and destructive of social, ethical and
legal norm. Heinousness of crime or cruelty in its execution
however abhorrent and hateful cannot reflect in deciding
the guilt.
4. Misgiving, also, prevailed about appreciation of
evidence. Without adverting to submissions suffice it to
mention that credibility of witnesses has to be measured
with same yardstick, whether, it is ordinary crime or a
crime emanating due to communal frenzy. Law does not
make any distinction either in leading of evidence or in its
assessment. Rule is one and only one namely, whether
depositions are honest and true. Whether the witnesses,
who claim to have seen the incident in this case, withstand
this test is the issue? But before that some legal and general
questions touching upon veracity of prosecution version
may be disposed of.”
40. On a complete analysis of the entire evidences on the
record, we are of the considered opinion that in this case even the
confessional statement recorded is in complete violation of the
judgment of the Hon’ble Supreme Court in the case of Venkatesh
@ Chandra (supra). The relevant paragraph nos. ’22’ and ’23’ are
reproduced hereunder for a ready reference:-
“22. We must observe that we have repeatedly found a
tendency on the part of the prosecuting agency in
getting the entire statement recorded rather than only
that part of the statement which leads to the discovery
of facts. In the process, a confession of an accused
Patna High Court CR. APP (DB) No.441 of 2023 dt.19-02-2026
24/26which is otherwise hit by the principles of the Evidence
Act finds its place on record. Such kind of statements
may have a direct tendency to influence and prejudice
the mind of the court. This practice must immediately
be stopped. In the present case, the trial court not only
extracted the entire statements but also relied upon
them.
23. The other disturbing feature that we have noticed is
that voluntary statements of the appellants were
recorded on a DVD which was played in court and
formed the basis of the judgment of the trial court as is
noticeable from paras 34 and 35 of its judgment. Such a
statement is again in the nature of a confession to a
police officer and is completely hit by the principles of
the Evidence Act. If at all the accused were desirous of
making confessions, the investigating machinery could
have facilitated recording of confession by producing
them before a Magistrate for appropriate action in terms
of Section 164 of the Code. Any departure from that
course is not acceptable and cannot be recognised and
taken on record as evidence. The trial court erred in
exhibiting those DVD statements Exts. P-25 to 28. As a
matter of fact, it went further in relying upon them
while concluding the matter on the issue of conviction.”
41. The prosecution has miserably failed to establish the
chain of events and many questions in this case remain
unanswered by the prosecution. The judgment of the learned trial
court cannot sustain the test by which the evidences have required
to be appreciated. We set aside the impugned judgment and order
of the learned trial court.
Patna High Court CR. APP (DB) No.441 of 2023 dt.19-02-2026
25/26
42. We are aware that this is a case in which two girls
are the victims of the crime. The criminals are going unpunished
for the reason that the investigation in this case and the
prosecution witnesses are contradicting each other. The only basis
on which the appellant has been sought to be convicted is his
confessional statement leading to recovery of the dead body of one
of the victim girls but that is not duly proved, there are many gaps
in the evidences which we have pointed out hereinabove. The
judgment of the Hon’ble Supreme Court as to in which manner
confessional statement is to be extracted leading to disclosure of
some material object has not been followed by the Investigating
Agency and the learned trial court has completely missed out on it.
The presumption of innocence remains intact in this case,
therefore, in this case also the conviction of the appellant and
sentence have failed to satisfy the test on the anvil of presumption
of innocence. We therefore, set-aside the impugned judgment and
order.
43. The appellant is acquitted of the charges. He is in
jail, therefore, he shall be released forthwith if not wanted in any
other case.
44. This appeal is allowed.
Patna High Court CR. APP (DB) No.441 of 2023 dt.19-02-2026
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45. Let a copy of the judgment together with the trial
court’s records be sent down to learned trial court.
(Rajeev Ranjan Prasad, J)
( Praveen Kumar, J)
SUSHMA2/-
AFR/NAFR CAV DATE Uploading Date 26.02.2026 Transmission Date 26.02.2026
