Patna High Court
BHAGAWAN GHI JHA @ BHAGAWAN JI JHAversusThe State of Bihar
- Decided
- Disposal
- DISMISSED
Holding
The appellate court affirmed the trial court's acquittal, finding no basis to overturn it.
Summary
The appellant challenged the acquittal of respondent No.2 (Jagdish Yadav) in a murder case involving the death of Jitendra Jha, alleging that the trial court erred in finding the prosecution evidence insufficient. The prosecution case was based on a private complaint and the testimony of family members, alleging an illicit relationship between the accused and the victim's wife, but no independent witnesses were produced. The trial court held that the prosecution failed to prove the charges under Sections 302, 120B and 201/34 IPC beyond reasonable doubt, particularly disbelieving the child witness and noting procedural lapses in the complaint. On appeal, the High Court re‑appreciated the evidence, applied the principles governing appeals against acquittal under Section 378 CrPC, and concluded that the trial court's view was a permissible one on the record. Consequently, the Court dismissed the appeal, upholding the acquittal.
Issues considered
- The prosecution failed to establish guilt beyond reasonable doubt under Sections 302, 120B and 201/34 IPC.
- Whether the private complaint complied with the Supreme Court's directions in Priyanka Srivastava.
- Whether the circumstantial evidence and witness testimonies were sufficient to sustain a conviction.
- Applicability of the standards for appeal against acquittal under Section 378 of the CrPC.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 154(3), 313, 378
- Indian Penal Code — s. 120B, 201, 302, 34, 364, 366
Subjects
- acquittal
- appeal against acquittal
- circumstantial evidence
- burden of proof
- witness credibility
- private complaint
- Section 378 CrPC
- Indian Penal Code
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.477 of 2023
Arising Out of PS. Case No.-128 Year-2010 Thana- RAMGARHWA District- East
Champaran
======================================================
Bhagawan Ghi Jha @ Bhagawan Ji Jha, son of Late Rup Narayan Jha,
Resident of Village- Bhaishra, P.S. Ramgarhawa District- East Champaran
... ... Appellant/s
Versus
1. The State of Bihar
2. Jagdish Yadav, s/o Late Sajawal Rai, Resident of Village- Panchvidiya, P.S.
Ramgarhawa, Dist.- E. Champaran
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr.Dhannjay Kumar No 2, Advocate
For the State : Mr.Sujit Kumar Singh, Addl.P.P.
For the R-2 : Mr. Kamal Kant Tiwary, Advocate
Mr. Kundan Rathore, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE JUSTICE SMT. SONI SHRIVASTAVA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 19-03-2026
Heard learned counsel for the appellant, the respondent
no.2 and learned Additional Public Prosecutor for the State.
2. The appellant in this case is seeking setting aside of the
judgment of acquittal dated 15.02.2023 passed by learned
Additional District and Sessions Judge-XXII Court, Motihari in
the District of East Champaran in Sessions Trial No.343 of 2012,
G.R. No.568 of 2010 arising out of Ramgarhwa P.S. Case No.122
of 2010 dated 28.08.2010 registered under Sections 364, 302,
120B and 201/34 of the Indian Penal Code (in short ‘IPC’).
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3. By the impugned judgment, the learned trial court has
been pleased to hold and declare that the prosecution has failed to
establish the charges under Sections 302, 120B and 201/34 IPC
beyond all reasonable doubts against the accused. The learned trial
court has acquitted the accused-respondent no.2 of all the charges
giving him benefit of doubt.
4. The prosecution case is based on a written complaint
petition giving rise to Complaint Case No.C336 of 2010 filed in
the court of learned Sub-Divisional Judicial Magistrate, Raxaul
which was later on referred to Ramgarhwa police station for
lodging of a First Information Report and to file a police report
after completion of investigation.
5. In the complaint petition, the complainant/informant
alleged that the accused Soni Jha is the wife of the younger brother
of the informant, namely, Jitendra Jha who was mentally retarded.
The brother of the informant had been living separately from his
wife Soni Jha since last five years. Soni Jha had developed illicit
relationship with Jagdish Yadav (respondent no. 2). It is further
stated that his brother came to know about this relationship and
made protest and lived in fear because Jagdish Yadav is a man of
criminal mentality. On 08.03.2010 in the morning, when Soni Jha
with her children and husband (Jitendra Jha) were leaving the
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house then the informant asked her where were you going then
Soni Jha replied that she was going to her Naihar with her husband
and from there Jitendra Jha (brother of the informant) will go with
her brother and brother-in-law (jija) for work at Delhi. Thereafter,
they went away. On 09.03.2010, she came to her village and
started living there. On 29.06.2010 Soni Jha took all her
belongings and left the house with children. On 08.07.2010, there
was a marriage ceremony of younger brother of Soni Jha. It is
alleged that in the said marriage ceremony all brothers and sisters
were present but brother of the informant was not present there
then the informant made inquiry to brother of Soni Jha and
brother-in-law of Soni Jha to which they have not given any
satisfactory reply. On 12.07.2010 when the sister of the informant,
namely, Anita (PW-8) talked to Soni Jha over mobile phone, she
came to know that his brother Jitendra Jha is no more. Soni Jha
was missing from her Naihar since the evening of 12.07.2010 and
her mobile phone was also coming switched off. The informant
alleged that he had full confidence that Soni Jha and Jagdish Yadav
along with other associates killed his brother under a conspiracy.
6. After investigation of the case, police submitted a
charge-sheet against the respondent no.2 only, the investigation
against the co-accused Soni Jha was kept pending further
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investigation. Vide order dated 15.02.2012, the learned Chief
Judicial Magistrate, Motihari, East Champaran took cognizance of
the offence under Sections 366, 302, 120B and 201/34 IPC.
Finding that Section 302 IPC is triable by the court of Sessions, the
records were committed to the court of Sessions on 14.05.2012.
7. In the court of Sessions, the charges were read over and
explained to the accused-respondent no.2 who denied the charges
and claimed to be tried. The learned trial court framed the charges
under Sections 364/34, 302, 120B and 201 IPC vide order dated
28.05.2012.
8. The statement of the accused was recorded under
Section 313 Cr.P.C. The accused, however, did not adduce any
evidence in his defence.
9. The prosecution examined as many as eight witnesses
and got exhibited three documents. The defence got exhibited one
document which has been marked Exhibit-A. The description of
the prosecution witnesses, the documentary evidences adduced on
behalf of the prosecution as well as documentary evidences
adduced on behalf of the defence are provided hereunder in tabular
form:-
PW-1 Tripurari Jha
PW-2 Harish Chandra Jha
PW-3 Krishna Ji Jha
PW-4 Sunil Kumar Jha
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PW-5 Gudiya Kumari
PW-6 Bibhakar Mishra
PW-7 Bhagwan Ji Jha (informant)
PW-8 Shakeel Ahmad
List of documents on behalf of prosecution
Exhibit-1 Signature of complainant/informant on
the complaint petition
Exhibit-2 Signature of in-charge police station on
formal FIR
Exhibit-3 Signature of in-charge police station on
complaint petition
List of documents on behalf of the defence
Exhibit-A Record of complaint Petition No.333 of
2010
10. The learned trial court having examined the entire
prosecution evidences recorded a finding in paragraph ‘19’ of the
impugned judgment as under:-
(i) There is no independent witness in this case who has
wholly supported the prosecution case of murder/death of Jitendra
Jha, they have only expressed suspicion.
(ii) The prosecution had completely failed to establish the
illicit relationship between the accused-respondent no.2 with the
co-accused Soni Jha, the prosecution could not establish that the
illicit relationship is the reason behind the killing of the husband of
Soni Jha.
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(iii) The prosecution had also failed to establish that there
were telephonic talks between the accused and the co-accused. The
I.O. had not taken out the print of the CDR.
(iv) The I.O. had not conducted any investigation on the
complaint petition filed by Soni Jha in past against her sasural
people.
(v) The learned trial court has not believed the evidence
adduced by Gudiya Kumari (PW-5) who is a child witness being
daughter of the deceased and the co-accused Soni Jha.
(vi) The learned trial court further found that the I.O. had
not recorded the statement of the co-accused Soni Jha even as she
had already been found when the investigation was going on. In
such circumstance, the learned trial court returned the findings as
recorded by this Court hereinabove.
11. The findings of the learned trial court has been
assailed by learned counsel for the appellant. It is submitted that
so far as the first finding of the learned trial court with regard to
the non-availability of the independent witnesses is concerned, the
same is correct. It is admitted that all the prosecution witnesses are
related to each other and family members of the deceased. Learned
counsel, however, submits that the witnesses have stated about the
close/intimate relationship between the accused-respondent no.2
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and the wife of the deceased. Heavy reliance has been placed on
the deposition of the daughter of the victim Gudiya Kumari (PW-
5) and it has been submitted that the evidence of PW-5 is required
to be given due credence.
12. The appeal has been opposed by learned counsel for
the accused-respondent no.2. It is submitted that on bare perusal of
the complaint petition giving rise to present FIR, it would appear
that the complaint case was filed on or about 19.07.2010. The
complainant/informant claimed that the accused no.1 was having
illicit relationship with accused no.2 who happened to be a man of
criminal nature. It is submitted that according to the
complainant/informant, the co-accused Soni Jha had left her house
with her husband Jitendra Jha and the children on 08.03.2010. She
told the complainant/informant that she was going to her Maike
from where they would go to Delhi with her brother and brother-
in-law. It is stated that there was a marriage ceremony in the house
of the accused no.1 on 08.07.2010 in which her all brothers and
sisters had assembled but Jitendra Jha was not seen on the said
occasion.
13. Learned counsel submits that it is evident from the
statements made in the complaint petition and the deposition of the
complainant/informant (PW-7) that he had no connection with his
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brother Jitendra and after his brother left the house, the informant
was not keeping in touch with him but it is an admitted position
that the deceased brother of the informant was having some
medical complications as he was suffering from mental
retardation. The prosecution witnesses have stated that Soni Jha
was taking her husband for treatment with the help of accused
no.2. She being a lady having no other help from her house, it
appears that she was taking help from accused no.2 in taking her
husband to the doctor. Reference in this regard has been made to
the deposition of Tripurari Jha (PW-1).
14. Learned counsel submits that there is no independent
witness of the village who has come to depose as to the
relationship between the accused no.1 and accused no.2. Even PW-
1 has admitted that he had not seen them in any illicit relationship.
15. Be that as it may, it is submitted that the complaint
petition was filed directly in the court and in this regard the
compliances required to be made in terms of the judgment of the
Hon’ble Supreme Court in the case of Priyanka Srivastava &
Another Vs. State of Uttar Pradesh & Others (2015) 6 SCC 287
has not been done. No affidavit was enclosed and no compliance
with Section 154(3) Cr.P.C. has been done.
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16. Learned counsel submits that the evidence of the
informant (PW-7) would only show that Soni Jha was on talking
terms with Jagdish Yadav (R-2) but save and except that there is
nothing on the record to show that they were in any illicit
relationship. He has deposed that he got information regarding the
marriage ceremony in the house of Soni Jha from some people but
he has not disclosed the name of that person who had informed
him about the said marriage ceremony. Soni Jha has not been
interrogated by the I.O., therefore, even this aspect of the matter
remained without investigation. It is further submitted that in
course of his cross-examination, the defence suggested that Soni
Jha had lodged a case against the informant, his wife, his brother-
in-law and others and she had alleged that her husband had been
made to disappear and then there was an attempt to rape, the
informant (PW-7) denied to have any information regarding this
but the defence has brought on record a certified copy of the
complaint petition filed by Soni Jha which has been marked
Exhibit-A.
17. In paragraph ‘16’ of his deposition, PW-7 has stated
that after six months of the lodging of this case Soni Jha met him,
he took her to his house where she stayed for about 3-4 months but
thereafter she fled away with Jagdish Yadav. He has stated that
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both the children of Soni Jha were living with him as he had not
sent the children to their maternal grand-parents. This witness has
accepted that there was partition in the year 2005 and Soni Jha was
satisfied with the said partition. Learned counsel submits that on a
complete reading of the evidence of the informant (PW-7), it
would appear that he has not given any reason as to why Soni Jha
would indulge in killing of her husband and if it was so then how
the informant took her to his house to stay there with her children.
18. Learned counsel further submits that so far as the
evidence of child witness Gudiya Kumari (PW-5) is concerned, the
learned trial court has rightly held that her deposition is not
reliable. She is a child witness and she was in the custody of the
informant for about three years prior to her deposition. Her
statement under Section 164 Cr.P.C. was not recorded and she has
stated what she was being told by her Bare Papa (the informant).
The competence of the child witness (PW-5) to depose has not
been fully established and for these reasons no error has been
committed by the learned trial court in not relying upon the
evidence of the child witness Gudiya Kumari (PW-5).
19. It is lastly submitted that this being an appeal against
acquittal, unless this Court comes to an irresistible conclusion that
the accused no.2-respondent no.2 is guilty of commission of the
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offence alleged, the finding of the learned trial court need not be
disturbed.
20. We have heard the rival contentions and perused the
trial court records. In the present case, it is an admitted position
that there is no independent witness to prove the murder/death of
Jitendra Jha. The whole prosecution case clusters around the
suspicion that Soni Jha, the wife of the deceased, had illicit
relationship with Jagdish Yadav (R-2) but save and except the
statement that she was on talking term with Jagdish Yadav (R-2)
and sometimes she was taking her husband for treatment to a
doctor with the help of Jagdish Yadav on his motorcycle and in
course of that she was sitting closely to Jagdish Yadav, no other
and further facts have been proved. The materials available on the
record, in our considered opinion, no way proves the prosecution
case that the wife of the deceased was having illicit relationship
with Jagdish Yadav (R-2). We find no error in appreciation of the
evidence in this regard on the part of the learned trial court.
21. This Court has further found that the private complaint
case was filed by PW-7 but without complying with the directions
of the Hon’ble Supreme Court in the case Priyanka Srivastava
(supra). The informant (PW-7) admits in his deposition that six
months after filing of the complaint, Soni Jha met him and he had
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brought her with the children in the home where she stayed for 3-4
months. PW-7 has admitted partition in the year 2005 and that
Soni Jha was satisfied with the partition but PW-7 has not
whispered anything as to why Soni Jha would indulge in killing of
her husband or to make him to disappear. If it could have been
shown then there was no reason for her to take her husband for his
treatment with the help of Jagdish Yadav (R-2) as has been stated
by PW-1.
22. We further find that the learned trial court has rightly
discussed the deposition of Gudiya Kumari (PW-5) who was ten
years old at the time of her deposition in the year 2013. At the time
of occurrence, she was about 7 years old, her statement was not
recorded under Section 164 Cr.P.C. and this witness remained in
the custody of the informant for about three years before she
deposed in the court room. Her deposition would go a long way to
suggest that she was tutored by the informant and in our
considered opinion, it would not be safe to rely upon the testimony
of the child witness to record an order of conviction against the
accused.
23. The case is based on the circumstantial evidence. We
are reminded of the judgments of the Hon’ble Supreme Court in
the case of Sharad Birdhichand Sarda vs. State of Maharashtra
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reported in (1984) 4 SCC 116 and Dilavar Hussain and Others
versus the State of Gujarat and Another reported in (1991) 1
SCC 253.
24. The relevant Paragraph ‘152’ of the judgment in the
case of Sharad Birdhichand Sarda (supra) 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 Pradesh1. “This case has been
uniformly followed and applied by this Court in a large
number of later decisions up-to- date, for instance, the
cases of Tufail (Alias) Simmi v. State of Uttar Pradesh 17
and Ramgopal v. State of Maharashtra18 . It may be useful
to extract what Mahajan,J. has laid down in Hanumant
case1 :
“It is well to remember that in cases where the
evidence is of a circumstantial nature, the
circumstances from which the conclusion of
guilt 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
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.477 of 2023 dt.19-03-2026
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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.”
25. The relevant Paragraphs ‘3’ and ‘4’ of the judgment in
the case of Dilavar Hussain (supra) are quoted hereunder for a
ready reference:-
“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 criminological 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
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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.”
26. On re-appreciation of the entire evidences available on
the record, we find no reason to take a different view from that of
the learned trial court. By no stretch of imagination the findings of
the learned trial court may be said to be perversed. The principles
governing an appeal against the acquittal are well settled. We place
our reliance on the judgment of the Hon’ble Supreme Court in the
case of H.D. Sundara and Ors. vs. State of Karnataka, reported
in (2023) 9 SCC 581. Paragarph ‘8’ of the said judgment is being
reproduced hereunder for a ready reference:-
“8. In this appeal, we are called upon to consider the
legality and validity of the impugned judgment 1
rendered by the High Court while deciding an appeal
against acquittal under Section 378 of the Code of
Criminal Procedure, 1973 (for short “CrPC”). The
principles which govern the exercise of appellate
jurisdiction while dealing with an appeal against
acquittal under Section 378 CrPC can be summarized
as follows:
8.1. The acquittal of the accused further strengthens
the presumption of innocence;
1. Karnataka v.H.K. Mariyappa, 2010 SCC OnLine Kar 5591
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8.2. The appellate court, while hearing an appeal
against acquittal, is entitled to re-appreciate the oral
and documentary evidence;
8.3. The appellate court, while deciding an appeal
against acquittal, after re-appreciating the evidence,
is required to consider whether the view taken by the
trial court is a possible view which could have been
taken on the basis of the evidence on record;
8.4. If the view taken is a possible view, the appellate
court cannot overturn the order of acquittal on the
ground that another view was also possible; and
8.5. The appellate court can interfere with the order
of acquittal only if it comes to a finding that the only
conclusion which can be recorded on the basis of the
evidence on record was that the guilt of the accused
was proved beyond a reasonable doubt and no other
conclusion was possible.”
27. In ultimate analysis, we find no reason to interfere
with the impugned judgment.
28. This appeal has no merit. It is dismissed accordingly.
(Rajeev Ranjan Prasad, J)
(Soni Shrivastava, J)
arvind/-
AFR/NAFR
CAV DATE
Uploading Date 25.03.2026
Transmission Date 25.03.2026
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