Patna High Court
RENU DEVI @ RENU KUNWARversusThe State of Bihar
- Decided
- Disposal
- DISMISSED
Holding
The appeal is dismissed; the acquittal of the accused is upheld.
Summary
The appellant, Renu Devi, the wife of the deceased Tarkeshwar Singh, appealed against the acquittal of five accused persons in a murder case. The trial court had found no direct evidence, no eyewitness, and a five‑day gap between the last sighting of the victim and the discovery of his skeleton, leading to a finding of insufficient proof. The prosecution relied on the deceased informant’s statements and prior depositions of witnesses recorded in an earlier trial (Sessions Trial No. 552) and sought to admit them under Section 33 of the Evidence Act and Section 299 of the CrPC. The High Court examined whether the two sessions trials (552 and 552A) could be treated as a single proceeding and whether the prior depositions were admissible. Citing the Supreme Court’s decision in A.T. Mydeen v. Assistant Commissioner, the Court held that the evidence was not identical and cross‑examination differed, thus the prior depositions could not be used to overturn the acquittal. Consequently, the appeal was dismissed and the acquittal upheld.
Issues considered
- The admissibility of prior witness depositions under Section 33 of the Evidence Act and Section 299 of the CrPC
- Whether Sessions Trial No. 552 and Sessions Trial No. 552A constitute the same proceeding for evidentiary purposes
- The sufficiency of circumstantial evidence and the 'last seen together' doctrine in proving murder
- The relevance of hearsay testimony from PW‑1 and PW‑2
Legislation cited
- Code of Criminal Procedure, 1973 — s. 207, 299, 313, 319, 372
- Indian Evidence Act, 1872 — s. 33
- Indian Penal Code — s. 120B, 201, 302
Subjects
- murder
- acquittal
- evidentiary admissibility
- Section 33 Evidence Act
- Section 299 CrPC
- last seen together doctrine
- hearsay
- criminal appeal
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.512 of 2023
Arising Out of PS. Case No.-54 Year-2007 Thana- KOPA District- Saran
======================================================
RENU DEVI @ RENU KUNWAR wife of Late Tarkeshwar Singh Village-
Patila PS- Kopa Dist- Saran
... ... Appellant
Versus
1. The State of Bihar
2. Satyendra Yadav son of Kanhaiya Lal Yadav Village- Bankata PS- Kopa
Dist- Saran
3. Dinesh Pandit son of Late Yadunath Pandit Village- Patila PS- Kopa Dist-
Saran
4. Sudama Sah son of Late Ram Pravesh Sah Village- Patila PS- Kopa Dist-
Saran
5. Raghuvir Sah son of Late Ram Pravesh Sah Village- Patila PS- Kopa Dist-
Saran
6. Sunil Sah son of Shiv Prasad Sah Village- Patila PS- Kopa Dist- Saran
... ... Respondents
======================================================
Appearance :
For the Appellant/s : Mr. Sanjay Singh, Sr. Advocate
Mr. Rudrank Shivam Singh, Advocate
Mr. Ranvir Pratap Singh, Advocate
For the State : Mr. Satya Narayan Prasad, APP
For the Pvt. Respondent : Mr. P.N. Shahi, Sr. Advocate
Mr. Anjani Parashar, Advocate
Mr. Madhukar Anand, Advocate
Mr. Shubham Kumar Singh, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE SHAILENDRA SINGH
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 02-04-2026
The present appeal has been preferred by the wife of the
deceased and daughter-in-law of the informant under proviso to
Section 372 of the Code of Criminal Procedure (in short 'CrPC'),
1973 (since repealed).
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2. Challenge in this appeal is to the judgment of
acquittal dated 28th March, 2023 (hereinafter referred to as the
‘impugned judgment’) passed by learned 3rd Additional Sessions
Judge-cum-Special MP/MLA/MLC Court, Saran at Chhapra
(hereinafter referred to as the ‘learned trial court’) in Sessions Trial
No. 552A of 2007 arising out of Kopa P.S. Case No. 54 of 2007
registered under Sections 302, 120B, 201/34 of the Indian Penal
Code (in short ‘IPC’) by which the accused-respondent nos.2 to 6
who were facing trial under Sections 302/34, 201/34 and 120B/34
IPC have been acquitted.
3. By the impugned judgment the learned trial court has
held that the prosecution has not been able to establish its case
under theory of last seen together. It is not based on direct
evidence as there is no eyewitness on behalf of the prosecution.
There is a long gap of five days between the last seen together
with the deceased till the date on which his decomposed body in
human skeleton skeleton was found and from the medical evidence
on the record, no cause of death could be ascertained in the
postmortem report. The learned trial court held that in this case
Section 106 of the Evidence Act would not be attracted. The court
found that the prosecution also failed to establish the motive
against the accused persons and that the complete chain of events
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or complete chain of evidence could not be established by the
prosecution to prove its case against all the five accused persons
for committing the offence of murder. The learned trial court
acquitted all the five accused who faced trial in this case on
account of lack of sufficient evidence, of all the charges.
Prosecution Case
4. The prosecution case is based on the fardbeyan of
Ganesh Singh (not examined) recorded by Sub-Inspector of Police
Laxman Prasad (PW-5) on 02.07.2007 at 11:30 Hrs. on the parti
land of Bali Thakur in Village Patila in the District of Saran.
In his fardbeyan, the informant has alleged that in the morning
at 08:30 AM when he was sitting at his darwaja, he heard hulla in
the village that the dogs are pulling away a dead body which was
buried under the land in between the plot of Bali Thakur and
Gajnath Prasad. On receipt of this information, he took his
grandson Rajan and Kundan Singh (PW-1) with him and reached
at the plot of Bali Thakur where he found that towards southern
ridge of the plot of Bali Thakur in the direction of West-East, a
human skeleton of a dead body was lying on the land and the dogs
were pouncing and eating the same. The informant further stated
that the face and the upper part above the waist of the body had
decomposed (lj xy x;k Fkk). On the bone of the neck, one chain
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and in the left hand one torn old red-blue and white color bushirt
part and in the body one mairoon and old full pant which were torn
were there and he identified that it was his son Tarkeshwar Singh.
The informant claimed that 200-250 villagers from neighboring
places assembled there.
He alleged that on 27.06.2007 during the night hours at 09:00
PM his co-villager Rajesh Ram, son of Hira Lal Ram had come to
his house/darwaja and took away his son Tarkeshwar Singh with
him on the pretext of attending the marriage ceremony of the
daughter of a co-villager namely Bharat Shah. He claimed that he
had also gone there with Rajan Singh and Munindra Singh but
before he reached they had already left the place. Thereafter, the
informant took his dinner and he left then he saw that at the door
of Sudama Sah and Raghuvir Sah, three motorcycles were parked
and about 8 to 10 people were having discussions. Thereafter the
motorcycles started and the first motorcycle was being driven by
Satyendra Yadav, the informant's son was sitting on this
motorcycle between Satyendra Yadav and an unknown person. On
second motorcycle, Dinesh Pandit, Sunil Sah and one unknown
person were sitting and on the third motorcycle Rajesh Ram and
two unknown persons were sitting. All the three motorcycles went
away towards the western side of the village. It is alleged that
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when the informant's son did not return till 30.06.2007, informant
sent his grandson to enquire about the victim upon which he was
informed that the victim will return in 2-3 days. When the victim
did not return till 30.06.2007, then informant himself went to the
house of Rajesh Ram where he was informed that his son will
return on second or third.
On 02.07.2007, while the informant was sitting at his door he
heard hulla that one dead body has been found buried in southern
ridge in the village and dogs are pouncing and eating the dead
body. When the informant went to that place there were 200-250
people there and on seeing the bushirt, pant and the chain in the
neck, he identified that the dead body was of his son Tarkeshwar
Singh. The informant believes that all the six persons have
murdered his son Tarkeshwar Singh.
5. On the basis of the fardbeyan of Ganesh Singh (PW-
3), police registered Kopa P.S. Case No. 54 of 2007 dated
02.07.2007 against six named accused persons and four unknown
accused persons but after investigation, police submitted Charge-
sheet No. 74 of 2007 dated 26.10.2007 only against accused
Rajesh Ram under Sections 302, 201, 120B/34 IPC. At this stage,
the investigation against the other accused persons remained open.
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6. Vide order dated 29.10.2007, the learned Chief
Judicial Magistrate, Saran took cognizance of the offences under
the above mentioned Sections and summoned the sole charge sheet
accused Rajesh Ram to face the trial. The investigation against
these five accused-respondents were kept open. Upon finding that
the offences alleged against the accused are liable to be tried by a
Court of Sessions, the records were committed to the court of
Sessions where the charges were explained to the accused person
in Hindi, they denied the charges and claimed to be tried.
Accordingly, vide order dated 17.02.2020 charges were framed
under Sections 302/34, 120B/34 and 201/34 IPC against the
accused-respondent nos. 2 to 6.
7. In course of trial, the prosecution has examined
altogether five 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 Kundan Singh @ Kundan Kumar Singh
PW-2 Renu Devi @ Renu Kunwar
PW-3 Dr. Umesh Sharma
PW-4 Dr. Shambhoo Nath Singh
PW-5 Laxman Prasad
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List of Exhibits on behalf of prosecution
Exhibit 1 Postmortem Report of Tarkeshwar Singh
Exhibit 2 Signature of Dr. Shambhunath Singh on the Postmortem
Report
Exhibit 3 Signature of Dr. S.K. Chakhyer on the Postmortem Report
Exhibit 4 Fardbeyan of Ganesh Singh in writing and signature of
Laxman Prasad
Exhibit 5 Signature of Rajan Singh on the Fardbeya
Exhibit 6 Signature of then SHO on the formal FIR
Exhibit 7 Carbon Copy of Inquest Report
Exhibit 8 Charge Sheet NO. 74 OF 2007
Exhibit 9 Certified copy of deposition of Ganesh Singh the informant
of this case in Sessions Trial no. 552 of 2007
Exhibit 10 Certified copy of deposition of Rajan Singh in the original
Sessions Trial no. 552 of 2007
Exhibit 11 FSL Report
Exhibit 12 Certified copy of affidavt of accused Satyendra Yadav filed as
candidate of Bihar Vidhan Sabha Election in 2020.
Exhibit 13 Certified copy of bail order in copa PS case no. 48 of 2019
The defence examined the following witnesses:-
PW-1 Bharat Sah
PW-2 Arun Kumar Tiwari
PW-3 Shiv Charan Sah
PW-4 Shubh Narayan Ram
PW-5 Mandev Ram
PW-6 Raju Sah Alias Raju Kumar Sah
PW-7 Sri Bhagwan Yadav
PW-8 Umesh Ram
PW-9 Chuman Kumar Sah
PW-10 Chhatu Kumar Singh
PW-11 Kedar Nath Sharma
PW-12 Ravindra Kumar Yadav alias
Ravindra Kumar
PW-13 Prahalad Prasad
PW-14 Rajshwar Rai
PW-15 Mithilesh Yadav
PW-16 Yogendra Yadav alias Yogendra
Rai
PW-17 Dharmnath Yadav
PW-18 Kanhaiya Manjhi
PW-19 Kam Lal Ram
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PW-20 Shailendra Kumar Rai @
Shailendra Rajbhar
PW-21 Sunil Ram
PW-22 Bipin Kumar Pandit @ Bipin
Pandit
PW-23 Md. Salim Ansari
PW-24 Mantosh Giri.
PW-25 Brajendra Ram @ Brajendra
Kumar Ram
PW-26 Adbud Sah
PW-27 Mukhtar Yadav
PW-28 Ram Bijay Pandit.
PW-29 Mukhtar Pandit.
PW-30 Madan Yadav @ Madan Pd.
Yadav
PW-31 Shankar Yadav.
PW-32 Ramayan Prasad
PW-33 Ashok Rai
PW-34 Babloo Rai @ Sanjay Kumar
Yadav.
PW-35 Ramjeet Kumar Rai
PW-36 Baleshwar Kumar Yadav
PW-37 Binod Singh
PW-38 Saroj Ram
PW-39 Durga Ram
PW-40 Estiyaq Akhtar @ Saheb Mian
PW-41 Bateswar Prasad mahto @
Bateshwar Mahto
PW-42 Kamshwar Ray
PW-43 Sukhdeo Yadav
PW-44 Harendra Baitha
PW-45 Saiyad Saifu Rahman
PW-46 Bindeshwari Ram
PW-47 Ramuna Yadav
PW-48 Amresh Yadav @ Amresh Kumar
Yadav.
List of Exhibit on behalf of Defence
Exhibit A Certified copy of FIR of Kopa P.S. Case No. 48 of 2019
Exhibit B Certified copy of GR Register in Kopa P.S. Case No. 54 of
2007
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9. Thereafter, the statement of the accused persons was
recorded under Section 313 CrPC in which they claimed
innocence.
Findings of the learned Trial Court
10. The learned trial court has examined the oral and
documentary evidences and recorded a finding leading to acquittal
of the accused. The findings recorded by the learned trial court
have been briefly stated by this Court at the top of this judgment,
hence those are not reiterated at this stage.
Analysis of the evidence of prosecution witnesses
11. Kundan Kumar (PW-1) stated in his evidence that
on 27.06.2007 around 9:00 PM, while he was having dinner on the
roof, Rajesh Ram arrived at his door and asked his father
Tarkeshwar Singh to accompany him to the wedding of daughter
of Bharat Ram. Rajan, Munindra Singh and grandfather Ganesh
Singh also left with them and returned at 10 PM. According to the
witness, his grandfather said that three motorcycles heading west
carrying Satyendra Yadav, Dinesh Pandit, Sunil Sah, Rajesh Ram
and two unknown men. Deceased and an unknown person were
with Satyendra Yadav on one motorcycle. When his grandfather
went to the house of Rajesh Ram and Satyendra Yadav for inquiry
about his son, he was informed that his son will return in 2-4 days
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but his father did not return. On 02.07.2007, dead body of father
of PW-2 was found in the field of Bali Thakur and identified his
body. His grandfather and brother Rajan Singh have died.
12. In his cross-examination, PW-1 has stated that his
village Patila is 3-4 kilometers away from the village of Satyendra
Yadav. He could not say about enmity of his father with the
villagers or about any case. His father had gone to the marriage of
daughter of Bharat Sah at 9:00 PM and after 2-4 minutes his
grandfather had gone but he had not gone in the marriage. There
are 10-12 houses in between the house of PW-1 and Bharat Sah.
PW-1 has further deposed that he had identified the dead body of
his father with the help of torn clothes and chain which was in the
neck of his father, he is not aware about seizure of the said
clothes. He has denied that his father had enmity with someone
and he himself was a criminal. He is also not aware about any case
against his father for murder and kidnapping.
13. Renu Devi who has been examined as PW-2 has
deposed that her husband Tarkeshwar Singh was taken by Rajesh
Ram at 9:00 PM on 27.06.2007 to the marriage of daugher of
Bharat Sah. Her father-in-law Ganesh Singh, son Rajan Singh and
nephew Munindra Singh also went to the marriage and returned at
10:00 PM. She has further deposed that her husband Tarkeshwar
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Singh was sitting at the door of Raghuvir Sah with Dinesh Pandit,
Satyendra Yadav and Sunil Sah. Three motorcycles left towards
the western side and Satyendra Yadav was with deceased
Tarkeshwar Singh and an unknown person. On the next morning
she knew that her husband had not returned and upon inquiry it
was informed that Tarkeshwar would return in 2-3 days but he did
not return and later the dead body of his husband was found in the
field of Bali Thakur. She identified accused Sudama Sah in court
and said she could recognise other accused too.
14. In her cross-examination, PW-2 has stated that
police recorded her statement five days after her husband
disappeared. She saw the dead body in the field with several
people, police arrived but she does not know if they enquired
others. She has stated that her statement was not recorded there
and police was present there from 8:00 AM to 4:00 PM. She
identified the body by cheek, mouth, nose and with trouser and
shirt on the body. According to her, police had not made seizure
list of anything from the human skeleton. She has also stated that
her husband never went to jail and no case was registered against
him. She denied the suggestion that the skeleton was not of her
husband.
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15. In her cross-examination, PW-2 has stated that her
father-in-law has told about the occurrence in presence of the
family members. This witness denied to have knowledge of Kopa
P.S. Case No. 48 of 2005 regarding abduction of Sunil Sah in
which her husband was an accused. According to her knowledge,
there was not any criminal case registered against her husband.
16. Dr. Umesh Sharma (PW-3) who deposed on
02.07.2007 said that he was posted at Sadar Hospital, Chhapra and
had conducted postmortem examination on the dead body of
Tarkeshwar Singh and found the following antemorterm injuries:-
“Body is in advanced stage of decomposition,
Skull is present without any skin or muscles. Only
bones were present. The body could not be
recognised by face. It was recognised by
Chaukidar 3/9 Kapil Manjhi, Rajan Singh S/o
Tarkeshwar Singh and other relative present there
as on inquest. Right fore arms absent. Right arms
without any skin or muscles. In neck only cervical
bones present no muscle or skin. Left arms only
muscles attached, left fore arm only bone present.
Both hands are absent. Upper half of the body
almost turned into skeleton, ribs present, lungs and
heart absent, lower half of the body has skin and
muscle in abdomen. Only kidney and stomach was
present. That too in putrefied state. Stomach
empty.”
17. In his cross-examination, PW-3 stated that the dead
body was identified by Chaukidar 3/9 Kapil Manjhi and Rajan
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Singh son of the deceased. This witness further deposed that the
dead body was completely decomposed.
18. Dr. Shambhu Nath (PW-4) deposed that he was
Medical Officer at Sadar Hospital and he was a member of the
Medical Board as Observer which conducted postmortem
examination on the dead body of Tarkeshwar Singh.
19. Laxman Prasad (PW-5), the Investigating Officer
and the then S.H.O. of Kopa P.S. deposed that on 02.07.2007 he
recorded fardbeyan of Ganesh Singh at the field of Bali Thakur
and obtained his signature (Exhibit '4'). He identified signature of
Rajan Singh as Exhibit '5' and registered Kopa P.S. Case No. 54 of
2007 against Rajesh Ram and others. He signed his signature on
the formal FIR as Exhibit '6'. He took over the investigation of the
case and prepared the inquest report (Exhibit '7'). He further
deposed that in course of investigation he inspected the place of
occurrence and found that the body of Tarkeshwar Singh was
found as a decomposed skeleton between the fields of Bali Thakur
and Jai Nath Prasad which was identified by father and family
members through torn clothes and a neck chain. The body was
sent to Sadar Hospital, Chapra for postmortem.
20. This witness has further stated that in course of
investigation, he recorded restatement of informant Ganesh Singh
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who fully supported the occurrence. He also recorded statement of
other witnesses and all of them supported the occurrence. He
further deposed that he submitted charge-sheet No. 74 of 2007
against Rajesh Ram.
21. It appears from the trial court's records that after
completing the formalities under Section 207 CrPC, the records of
the case of Rajesh Ram was transferred to the court of Session
where charges were framed against him and Sessions Trial No. 552
of 2007 was registered. In the said trial Rajan Kumar, Munindra
Singh, and Ganesh Singh were examined as PW-1, PW-2, and PW-
3 respectively. Kundan Singh @ Kundan Kumar, Dr. Umesh
Sharma, Dr. Shambhu Nath Singh and Laxman Prasad were
examined as PW-4, PW-5, PW-6 and PW-7 respectively.
22. As the trial of Rajesh Ram progressed, after
recording of the evidence of PW-1, PW-2 and PW-3, the
prosecution filed an application under Section 319 of the Code of
Criminal Procedure for summoning the remaining accused persons
against whom the investigation was kept pending. The learned trial
court allowed the said application vide order dated 18.08.2008 and
summoned the remaining accused namely Satyendra Yadav,
Sudama Shah, Raghuvir Shah, Dinesh Pandit and Sunil Shah to
face the trial.
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23. It further appears that on appearance of those five
accused persons, a separate trial was registered on 05.12.2008
giving rise to Sessions Trial No. 552A of 2007.
24. It so happened that the Sessions Trial No. 552 of
2007 and Sessions Trial No. 552A of 2007 proceeded separately.
On 03.02.2009 Kundan Singh deposed as PW-4 in Sessions Trial
No. 552 of 2007 and thereafter the remaining witnesses PW-5,
PW-6 and PW-7 of Sessions Trial No. 552 of 2007 deposed.
25. As per records of the present trial, Kundan Singh @
Kundan Kumar Singh deposed as PW-1 in this trial on 8 th
September 2021, Renu Devi @ Renu Kunwar deposed as PW-2 on
1st day of November 2021, Dr. Umesh Sharma, Dr. Shambhu Nath,
and Laxman Prasad deposed on 11th day of February 2022, 11th day
of February 2022 and 4th April 2022 respectively. Renu Devi @
Renu Kunwar had not deposed in Sessions Trial No. 552 of 2007.
So far as Kundan Kumar Singh is concerned, he had deposed in
Sessions Trial No. 552 of 2007 on 3 rd February, 2009 whereas Dr.
Umesh Sharma and Dr. Shambhu Nath Singh who are PW-5 and
PW-6 in the present trial had deposed on same day i.e. on 11 th
February, 2022 while Laxman Prasad who is PW-7 in the present
trial deposed on 4th April, 2022 in Sessions Trial No. 552 of 2007.
In fact, a bare perusal of the testimony of these three witnesses
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would show that the same and one testimony has been prepared in
both the sessions trial with only difference that the sessions trial
number has been changed at the top of the deposition.
26. So far as the deposition of Kundan Singh @ Kundan
Kumar Singh (PW-1) of the present trial is concerned, it is found
that he has deposed in both the trials on two different points of
time and his testimony has to be appreciated in the present case
keeping in view his deposition available on the record in this case.
27. It appears that in course of trial, the prosecution
brought on record the deposition of Rajan Kumar (PW-1) and
Ganesh Singh (PW-3) of Sessions Trial No. 552 of 2007 and got
them exhibited. The certified copy of the deposition of Ganesh
Singh was marked Exhibit '9' whereas certified copy of deposition
of Rajan Singh was marked as Exhibit '10' in Sessions Trial No.
552A of 2007.
28. The prosecution took a plea that the certified copies
of the deposition of Rajan Singh and Ganesh Singh are admissible
and relevant piece of evidence which are required to be considered
in the present trial (552A of 2007) for the reason that they were
dead and could not be produced in course of trial of this case. The
prosecution relied upon Section 33 of the Evidence Act 1872 and
contended that the evidence given by a witness in judicial
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proceeding is relevant for the purpose of proving, in a subsequent
judicial proceeding when the witness is either dead or cannot be
produced to give evidence.
29. It would appear from the impugned order that the
learned trial court has discussed in detail the admissibility of
Exhibit '9' and Exhibit '10' with reference to Section 33 of the
Evidence Act and Section 299 of the Code of Criminal Procedure.
The trial court held that Exhibit '9' and Exhibit '10' will be relevant
in this case because these two witnesses had last seen the deceased
Tarkeshwar with the five accused persons at the door of one of the
accused persons Raghuvir Shah on 27.06.2007 at about 9:30 PM
but both the exhibits would not be admissible to the extent of
"proof" in this case as it would only be relevant under Section 33
of the Evidence Act to the extent of relevancy of evidence of the
informant who is dead. The trial court relied upon the judgment of
Hon’ble Full Bench in the case of A. T. Mydeen and Anr. vs.
Assistant Commissioner, Customs Department reported in
(2022) 14 SCC 392 (paragraph '39').
30. Mr. Sanjay Singh, learned Senior Counsel appearing
for the informant-appellant, has given much emphasis on his
submission that Sessions Trial Nos. 552 of 2007 and Sessions Trial
No. 552A of 2007 are same and one trial. It is his contention that
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the learned trial court has committed serious error in relying upon
the evidence of Rajendra Kumar and Ganesh Singh, who had
earlier deposed in Sessions Trial No. 552 of 2007. Learned Senior
Counsel has taken this Court through Section Section 33 of the
Evidence Act and Section 299 of the CrPC in his efforts to
persuade that both the trials are to be appreciated together and the
evidence of Gaensh Singh and Rajan Kumar are required to be
considered in the same manner as if they have deposed in Sessions
Trial No. 552 of 2007.
31. We, however, regret out inability to concur with the
submission advanced by the learned Senior Counsel for the
appellant. In this regard, we would reproduce Section 33 of the
Evidence Act and Section 299 of the CrPC for a ready reference:-
Section 33 of the Evidence Act
"33. Relevancy of certain evidence for proving, in
subsequent proceeding, the truth of facts therein
stated.- Evidence given by a witness in a judicial
proceeding, or before any person authorised by law
to take it, is relevant for the purpose of proving, in a
subsequent judicial proceeding, or in a later stage of
the same judicial proceeding, the truth of the facts
which it states, when the witness is dead, or cannot
be found, or is incapable of giving evidence, or is
kept out of the way by the adverse party, or if his
presence cannot be obtained without an amount of
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delay or expense which under the circumstances of
the case, the Court considers unreasonable :
Provided -
that the proceeding was between the same parties or
their representatives in interest;
that the adverse party in the first proceeding had the
right and opportunity to cross-examine; that the
questions in issue were substantially the same in the
first as in the second proceeding.
Explanation. - A criminal trial or inquiry shall be
deemed to be a proceeding between the prosecutor
and the accused within the meaning of this section."
Section 299 of the CrPC
"299. Record of evidence in absence of accused (1)
If it is proved that an accused person has absconded,
and that there is no immediate prospect of arresting
him, the Court competent to try or commit for trial
such person for the offence complained of, may, in
his absence, examine the witnesses (if any) produced
on behalf of the prosecution, and record their
depositions and any such deposition may, on the
arrest of such person, be given in evidence against
him on the inquiry into or trial for, the offence with
which he is charged, if the deponent is dead or
incapable of giving evidence or cannot be found or
his presence cannot be procured without an amount
of delay, expense or inconvenience which, under the
circumstances of the case, would be unreasonable.
(2) If it appears that an offence punishable with death
or imprisonment for life has been committed by some
person or persons unknown, the High Court or the
Sessions Judge may direct that any Magistrate of the
first class shall hold an inquiry and examine any
witnesses who can give evidence concerning the
offence and any depositions so taken may be given in
evidence against any person who is subsequently
accused of the offence, if the deponent is dead or
incapable of giving evidence or beyond the limits of
India."
Patna High Court CR. APP (DB) No.512 of 2023 dt.02-04-2026
20/21
32. In the case of A.T. Mydeen (supra), the Hon'ble
Supreme Court had occasion to consider the aforementioned
provisions keeping in view the case laws on the subject. We
reproduce paragraph '40' of the said judgment hereunder for a
ready reference:-
“40. Now, merely because the seven witnesses
produced by the prosecution were the same in both
the cases would not mean that the evidence was
identical and similar because in the oral testimony,
not only the examination-in-chief but also the cross-
examination is equally important and relevant, if not
more. Even if the examination-in-chief of all the
seven witnesses in both the cases, although
examined in different sequence, was the same, there
could have been an element of some benefit
accruing to the accused in each case depending upon
the cross-examination which could have been
conducted maybe by the same counsel or a different
counsel. The role of each accused cannot be said to
be the same. The same witnesses could have
deposed differently in different trials against
different accused differently depending upon the
complicity or/and culpability of such accused. All
these aspects were to be examined and scrutinised
by the appellate court while dealing with both the
appeals separately and the evidence recorded in the
respective trials giving rise to the appeals.”
33. We, therefore, do not agree with the contention of
learned Senior Counsel for the appellant in this regard. Coming to
the merit of the case, we find that there is no eyewitness of the
occurrence. PW-1 and PW-2 are hearsay witnesses whereas PW-3,
PW-4 and PW-5 are only formal witnesses of the case.
Patna High Court CR. APP (DB) No.512 of 2023 dt.02-04-2026
21/21
34. In result, we find no merit to interfere with the
judgment of the learned trial. This appeal has not merit it is
dismissed accordingly.
(Rajeev Ranjan Prasad, J)
I agree
(Shailendra Singh, J)
rishik/-
AFR/NAFR
CAV DATE 25.02.2026
Uploading Date 02.04.2026
Transmission Date 02.04.2026
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