Patna High Court
VIKASH KUMARversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
Holding
The appellate court set aside the conviction and acquitted the appellant of the offences under Sections 302, 323 and 341 IPC.
Summary
The appellant was convicted by the Children Court of Lakhisarai for murder, assault and causing hurt under Sections 302, 323 and 341 IPC based largely on the informant’s deposition and an investigating officer’s statement, which the trial court treated as a dying declaration. The appellant claimed juvenility; the Juvenile Justice Board initially held him to be 18 years but later adjudged him 17 years, leading to his trial as an adult. On appeal, the High Court examined the reliability of the informant’s evidence, the applicability of the “last seen” theory, the absence of a proper dying declaration, and inconsistencies in the post‑mortem report suggesting drowning rather than homicide. The Court found the prosecution evidence insufficient and the trial court’s findings perverse, concluding that there was no evidence to sustain the convictions. Consequently, the appellate court set aside the conviction, acquitted the appellant of all charges and ordered his immediate release.
Issues considered
- Whether the informant’s deposition and the investigating officer’s statement satisfy the burden of proof beyond reasonable doubt for Sections 302, 323 and 341 IPC.
- Whether the ‘last seen’ theory and the alleged dying declaration can be relied upon as substantive evidence.
- Whether the appellant, being a child in conflict with law, should be tried as an adult under the Juvenile Justice (Care and Protection of Children) Act, 2015.
- Whether procedural lapses in the investigation affect the admissibility and weight of the evidence.
- Whether the conviction should be upheld or set aside on the ground of insufficient evidence.
Legislation cited
- Code of Criminal Procedure — s. 313
- Indian Penal Code — s. 302, 323, 34, 341, 504
- Juvenile Justice (Care and Protection of Children) Act, 2015 — s. 15(1)
Subjects
- murder
- assault
- juvenile justice
- last seen theory
- dying declaration
- acquittal
- insufficient evidence
- life imprisonment
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.593 of 2023
Arising Out of PS. Case No.-161 Year-2020 Thana- BARHIYA District- Lakhisarai
======================================================
Vikash Kumar, Son of Subal Ram, R/O Vill - New Chavni English Ward No
11, PS – Barahia, Dist – Lakhisarai. ... ... Appellant
Versus
The State of Bihar ... ... Respondent
======================================================
Appearance :
For the Appellant : Mr. Arun Kumar, Advocate
For the Respondent : Mr. Abhimanyu Sharma, Addl.PP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE JUSTICE SMT. SONI SHRIVASTAVA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 13-03-2026
Heard learned counsel for the appellant and learned
Additional Public Prosecutor for the State.
2. This appeal has been preferred for setting aside the
judgment of conviction dated 28.02.2023 (hereinafter referred to as
the ‘impugned judgment’) and order of sentence dated 06.03.2023
(hereinafter referred to as the ‘impugned order’) passed by learned
Additional Sessions Judge-1st-cum-Children Court, Lakhisarai
(hereinafter referred to as the ‘learned trial court’) in G.R. No. 03 of
2022 arising out of Barahiya P.S. Case No. 161 of 2020. By the
impugned judgment, the appellant has been convicted for the
offences punishable under Sections 302, 341 and 323 of the Indian
Penal Code (in short ‘IPC’) and by the impugned order, he has been
sentenced to undergo life imprisonment and to pay a fine of
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Rs.25,000/- for the offence under Section 302 IPC and in case of
default of payment of fine, he has to undergo two years simple
imprisonment. For the offence under Section 323 IPC, he has been
ordered to undergo one year simple imprisonment and to pay a fine
of Rs.1,000/- and in case of default of payment of fine, he has to
undergo three months simple imprisonment. He has further been
ordered to undergo one month simple imprisonment and to pay a fine
of Rs.500/- for the offence under Section 341 IPC and in case of
default of payment of fine, he has to further undergo one week
simple imprisonment. All the sentences have been ordered to run
concurrently.
3. The prosecution case is based on a written information
dated 13.07.2020 submitted by one Binod Mahato who is the father
of the deceased. In his written information giving rise to the present
case, he alleged that on 09.07.2020 at about 08-09 PM in the night,
(1) Sachin @ Jatin, (2) this appellant, (3) Sonu Kumar came at his
house and took his son, namely, Suraj Kumar with them to the
‘bathan’ of Munnu Singh and assaulted him badly. The informant’s
son was assaulted by lathi, danda and rod. He was admitted in
Begusarai and was being treated by Dr. Sanjay Kumar, hence, the
written application was given on 13.07.2020.
4. It appears that after lodging of the FIR being Barahiya
P.S. Case No. 161 of 2020 dated 13.07.2020, the son of the informant
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died, therefore, Section 302 IPC was added in the FIR by virtue of
the order dated 20.07.2020 passed by learned Chief Judicial
Magistrate.
5. Police conducted investigation of the case and
submitted a chargesheet bearing Chargesheet No. 209 of 2020 dated
29.10.2020 in which sufficient materials were found to proceed
against the accused-appellant. The learned Magistrate took
cognizance of the offences vide order dated 18.03.2021 and after
finding that the appellant is being prosecuted for the offences triable
by the court of sessions, learned Magistrate committed the records to
the court of sessions where it was registered as G.R. No. 03 of 2022.
6. In the court of sessions/ trial court, the charges were
explained to the accused-appellant in Hindi who denied the charges
and claimed to be tried. Accordingly, charges were framed against
him vide order dated 18th August, 2022 for the offences punishable
under Sections 302/34, 341/34, 323/34 and 504/34 IPC.
7. In course of trial, the prosecution examined as many as
nine witnesses and got exhibited certain documents. The list of
prosecution witnesses and the documents are given hereunder in
tabular form:-
List of Prosecution witnesses
PW-1 Parwati Devi
PW-2 Pankaj Kumar
PW-3 Madhukar Kumar
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PW-4 Vivek Kumar
PW-5 Binod Mahto
PW-6 Shobha Devi
PW-7 Manoj Kumar Sharma
PW-8 Ranjan Kumar
PW-9 Dr. Kumar Mayank
List of Exhibits on behalf of Prosecution
Exhibit ‘1’ Signature of the informant on written
application
Exhibit ‘2’ Signature and handwriting of I.O. on
chargesheet
Exhibit ‘3’ Signature and handwriting of Dhirendra Kumar
recognized by I.O. on the formal FIR
Exhibit ‘4’ Signature on the postmortem report by the
doctor
8. It also appears that the appellant claimed juvenility by
filing an application on 19.09.2020 in the court of learned CJM
whereafter the records of the appellant was separated and it was sent
to the Juvenile Justice Board (in short ‘Board’) for inquiry and trial.
The Board, however, found that the child in conflict with law was 19
years as per the medical report. It was concluded that the accused-
appellant was aged about 18 years 6 months 5 days on the date of
occurrence. It, however, appears that the order of learned Juvenile
Justice Board was set aside in Cr. Appeal No. 11 of 2021 and the
Board was directed to once again examine the age of the accused-
appellant on the basis of a school certificate. Finally, the age of child
in conflict with law was adjudged as 17 years 8 months 22 days on
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the date of occurrence. The said order was also challenged in Cr.
Appeal No. 30 of 2021 which was dismissed by the learned ADJ-I.
9. Thereafter, the psychological evaluation of the child in
conflict with law was conducted under Section 15(1) of the Juvenile
Justice (Care and Protection of Children) Act, 2015 and it was found
that at the time of commission of offence he was having sufficient
knowledge regarding the crime and gravity of offence. His records
were, therefore, referred to the Children Court for conducting trial as
an adult. The above-named prosecution witnesses were examined and
the prosecution evidence was closed on 05.12.2022. Subsequently,
statement of the appellant was recorded under Section 313 of the
Code of Criminal Procedure and on the same day on the request of
defence counsel, defence evidence was also closed.
Findings of the Learned Trial Court
10. Having analysed the entire evidence available on the
record, learned trial court proceeded to record a finding as regards
the various charges levelled against the appellant. The learned trial
court held that the charges under Sections 341/34, 323/34 and 302
IPC have been proved beyond all reasonable doubts. So far as the
charge under Section 504 IPC is concerned, the trial court held that
there is nothing available on the record which would prove that the
deceased was abused with foul language or absurd language. The
learned court further records that there is no evidence regarding
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explicit utterance of abusive language and as such, the charge
under Section 504 IPC is not conclusively proved. While dealing
with the charge under Section 302 IPC, the learned trial court held
as under:-
“27. Almost all the witnesses who have
supported the prosecution story and made it
clear that the deceased was badly beaten and he
was beaten in such a manner that in all
likelihood the assault was sufficient to cause
death and thus Section 302 IPC is proved
beyond reasonable doubt.”
11. This Court finds that the learned trial court has, in
paragraph ‘29’ of the judgment dealt with the statement of the
informant (PW-5) and referring to paragraph ‘2’ of the deposition
of the informant, the trial court records that in paragraph ‘2’, the
informant clearly says that it was none else than (appellant) who
called his son at about 8-9 O’clock and he says that he has no idea
as to which place his son was taken away but the learned trial
court opined that this is almost clear that the son of the informant
was last seen with the appellant, hence, the last seen theory of the
Indian Evidence Act comes into play.
12. The learned trial court thereafter held with the last
seen theory and relies upon the evidence of the I.O. (PW-7) who
claimed that he had gone to local hospital, Begusarai and had
taken the statement of Suraj Kumar and the injured (since
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deceased). Relying upon the deposition of the I.O. (PW-7), the
learned trial court held that the recording of dying declaration was
clearly mentioned in paragraph ‘18’ of the police case diary and
there also the description of the dying declaration is conspicuous,
hence, this fact is clearly proved that it was appellant who had
assaulted the deceased with all intention and knowledge that his
assault would result into the death of the victim.
13. In the conclusion part of the judgment, the learned
trial court has recorded that except the informant, no other witness
has supported the story of the prosecution. The learned trial court
found that almost all the witnesses who have been declared hostile
can be presumed to be hearsay witnesses because all of them have
narrated that they had not seen the occurrence through their own
eyes. The learned trial court has further found that there was some
procedural aspect which might show some latches in the police
procedures but that has nothing to do with the evidentiary value of
the instant case because the statement of all the witnesses are
coherent and synchronous to each other as well as to the FIR.
Submissions on behalf of the Appellant
14. While assailing the impugned judgment and order of
the learned trial court, learned counsel for the appellant submits
that the learned trial court seems to have proceeded with the pre-
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conceived notion that the appellant is guilty of committing the
offence. It is submitted that the judgment of conviction is based on
a perverse finding of fact without proper appreciation of the
evidences available on the record.
15. It is submitted that mere bald statement of the I.O.
(PW-7) in paragraph ‘7’ of his deposition in course of trial has
been believed as dying declaration even as no memorandum of
dying declaration has been brought on record by way of evidence.
16. Learned counsel submits that in this case, the FIR
itself was lodged after four days of the occurrence. The trial court
accepts that all the witnesses except the informant has been
declared hostile and they are hearsay witnesses, therefore, the only
prosecution witness whose evidence is required to be considered in
this case is the informant (PW-5). It is pointed out that the
informant (PW-5) has categorically stated that he had got written
the application from someone else. He had only put his signature
on the same. His signature has been marked Exhibit ‘1’ but not the
whole application as the author of the said application is not
known and had never been produced in course of trial.
17. Learned counsel further submits that the informant
has admitted in paragraph ‘2’ of his deposition that he was at his
work when the appellant came and took away his son from his
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house at 9 O’clock in the night. In paragraph ‘3’ of his deposition,
the informant (PW-5) has clearly stated that he did not identify the
accused. In paragraph ‘4’ of his deposition, he has stated that when
Suraj Kumar was taken away, he was not in the house and
someone told him that Sonu Kumar had taken away his son. In
paragraph ‘5’, the appellant has stated that the accused who was
present in the dock had not called and had not taken away. Learned
counsel submits that on the face of the deposition of the informant
(PW-5), the manner in which the learned trial court has
appreciated his evidence has led to perversity. Learned trial court
has not gone into the entire evidence and has chosen to write one
or two line from the deposition of the informant only because the
court was all set to convict the appellant.
18. Learned counsel further submits that once there is no
eye-witness of the occurrence who has seen the appellant in the
company of the deceased at any time before he was found in the
injured condition, the last seen theory would not be attracted. Even
otherwise, last seen theory is supposed to be a very week theory
and a conviction based on the said theory alone would not be safe.
19. It is submitted that the learned trial court has referred
paragraph ‘18’ of the case diary even as the same does not form
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part of the evidence and no dying declaration, if any, present in the
case diary have been proved in course of trial.
Submissions on behalf of the State
20. Mr. Abhimanyu Sharma, learned Additional Public
Prosecutor for the State has indeed found it very difficult to defend
the impugned judgment and order. We can appreciate his position
because the duty of the Public Prosecutor is not to ensure
somehow conviction of the accused, a Public Prosecutor is
required to assist the Court fairly in reaching to a just and proper
conclusion.
21. Mr. Abhimanyu Sharma, learned Additional Public
Prosecutor for the State has fairly submitted before this Court that
on the face of the kind of deposition of the informant (PW-5), his
condition is worse than a hostile witness. It is not known how the
learned trial court would have placed reliance upon the evidence of
the informant (PW-5) to reach to a conclusion that his evidence is
consistent with the prosecution case.
Consideration
22. Having heard learned counsel for the appellant and
learned Additional Public Prosecutor for the State as also on going
through the evidence available on the record, we have a little
choice rather no choice to take a view other than that of acquittal
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of the accused-appellant. We are, in fact, of the considered opinion
that the finding of the learned trial court is perversed. The learned
trial court itself records that except the informant (PW-5) all other
witnesses have turned hostile and are in the category of hearsay
witnesses but then the trial court has attached much evidentiary
value to the evidence of the informant (PW-5).
23. We have noticed from the deposition of PW-5 that he
was not present in the house when his son (since deceased) was
taken away. He has stated that he had been told by someone that
one Sonu Kumar had taken away his son. He has also stated that
the accused who was present in the dock was not involved. What
else was required for the defence to create a doubt in the
prosecution story? The learned trial court seems to have not gone
into the entire evidence of the informant (PW-5) and has recorded
only one or two lines from his deposition without finding any
linkage with the entire deposition.
24. We have further found that the learned trial court has
treated the statement made by the I.O. (PW-7) in course of trial as
if it would fall in the category of a dying declaration. We are afraid
that a bald statement of the I.O. in course of trial that he had
recorded the statement of the victim in the hospital, without
bringing the said statement on the record and then giving an
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opportunity to the defence to test the veracity of the same would
be of no avail. We record a finding of perversity even on this
aspect. This Court has further noticed that the Doctor who
conducted the autopsy on the dead body of the deceased has been
examined as PW-9. He had examined the dead body on 19.07.2020
at the Sadar Hospital, Lakhisarai. He had found the following ante-
mortem injuries:-
“(1) Abrasion over right leg and left arm.
(2) Swelling over both hand and ankle.
(3) Water in both lungs and water in trachea.
(4) Blood in all four chambers of heart.
(5) Water is in stomach.”
25. According to PW-9, the cause of death was asphyxia
(antemortem drowning). The post-mortem report (Exhibit ‘4’)
gives rise to a different story, question remains as to who threw the
dead body of the victim in the water and how the dead body was
taken out and who were the persons who had taken out the body
from the water. The prosecution has not even brought on record
the treatment particulars of the deceased or proof of his admission
in any hospital at Begusarai.
26. In ultimate analysis of the entire evidence on the
record, we are of the considered opinion that it is a case of no
evidence. The trial court has grossly erred in convicting the
appellant and imposing a sentence of life imprisonment.
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27. The impugned judgment of conviction and the order
of sentence dated 28.02.2023 and 06.03.2023 respectively passed
by learned Additional Sessions Judge -1st-cum-Special Judge,
Children Court, Lakhisarai in G.R. No. 03 of 2022 arising out of
Barahiya P.S. Case No. 161 of 2020 are, accordingly, set aside.
28. The appellant is acquitted of the charges punishable
under Sections 302, 323 and 341 IPC. The appellant is in jail,
therefore, he shall be released forthwith if not wanted in any other
case.
29. The appeal is allowed.
30. Let a copy of this judgment together with the trial
court records be sent down to the learned trial court.
(Rajeev Ranjan Prasad, J)
( Soni Shrivastava, J)
SUSHMA2/-
AFR/NAFR
CAV DATE
Uploading Date 25.03.2026
Transmission Date 25.03.2026
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