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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

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."
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                    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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