Patna High Court
PRAPHULL KUMARversusThe State of Bihar
- Decided
- Disposal
- DISMISSED
Holding
The appellate court held that the acquittal must not be disturbed because the prosecution failed to prove its case beyond reasonable doubt and the evidence permitted two reasonable conclusions, invoking the double presumption of innocence.
Summary
The appellant, son of the deceased, appealed under the proviso to Section 372 CrPC against the acquittal of four accused in a murder case arising from a land dispute in Ghorasahan. The trial court had found that the prosecution witnesses, after subsequent cross‑examination, were unreliable and that the prosecution failed to prove the charges under Sections 302, 307 and 324/34 IPC beyond reasonable doubt. The appellant argued that the trial court erred by ignoring the earlier cross‑examination and by not considering the full evidence, including medical reports and statements of the investigating officer, and that non‑compliance with Section 207 CrPC violated the right to a fair trial. The respondents contended that the trial court correctly applied the law, that the procedural defect was cured, and that the evidence, though inconsistent, did not warrant conviction. The High Court examined the mandatory nature of Section 207, the concept of a fair trial, and the principle of double presumption of innocence, concluding that the evidence allowed for two reasonable conclusions and therefore the acquittal should stand. Consequently, the appeal was dismissed.
Issues considered
- Whether a plea of non‑compliance with Section 207 CrPC can be raised at any stage of the trial and preclude the accused from raising it later.
- Whether the trial court erred by not considering the earlier cross‑examination of prosecution witnesses conducted before compliance with Section 207 CrPC.
- Whether the violation of Section 207 CrPC infringed the accused's right to a fair trial under Articles 20 and 21 of the Constitution.
- Whether a conviction can be based on moral considerations rather than legal evidence.
- Whether the appellate court should interfere with an acquittal when two reasonable conclusions are possible from the evidence.
Legislation cited
- Code of Criminal Procedure — s. 207, 209, 238, 313, 372
- Indian Penal Code — s. 302, 307, 324/34
Subjects
- Section 207 CrPC
- fair trial
- appeal against acquittal
- double presumption of innocence
- evidence reliability
- witness cross‑examination
- procedural compliance
- Indian Penal Code
- burden of proof
- criminal procedure
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.763 of 2023
Arising Out of PS. Case No.-124 Year-1991 Thana- GHORASAHAN District- East
Champaran
======================================================
Praphull Kumar Son Of Late Suresh Thakur Resident Of Village- Nimuiya,
Ps- Ghorasahan, Distt- East Chmaparan
... ... Appellant/s
Versus
1. The State of Bihar
2. Brij Kishore Thakur Son Of Ranjeet Kumar Resident Of Village- Nimuiya,
Ps- Ghorasahan, Distt- East Chmaparan
3. Raju Thakur Son Of Ranjeet Thakur Resident Of Village- Nimuiya, Ps-
Ghorasahan, Distt- East Chmaparan
4. Akhileshwar Thakur Son Of Late Rameshwar Thakur Resident Of Village-
Nimuiya, Ps- Ghorasahan, Distt- East Chmaparan
5. Ranjeet Thakur Son Of Late Ramashish Thakur Resident Of Village-
Nimuiya, Ps- Ghorasahan, Distt- East Chmaparan
... ... Respondent/s
======================================================
Appearance :
For the Appellant : Mr. Ajay Kumar Thakur, Advocate
Mr. Suraj Kumar Tiwari, Advocate
Mr. Ritwij Raman, Advocate
Ms. Sushmita Mishra, Advocate
For the State : Mr. Satya Narayan Prasad, Addl PP
For the Resp Nos. 2 to 5 : Mr. Prince Kumar Mishra, Advocate
Mr. Abhishek Kumar, Advocate
Mr. Hemant Ray, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE JUSTICE SMT. SONI SHRIVASTAVA
CAV JUDGMENT
(Per: HONOURABLE JUSTICE SMT. SONI SHRIVASTAVA)
Date : 19-06-2026
Heard Mr. Ajay Kumar Thakur assisted by Mr.
Suraj Kumar Tiwari, learned counsel for the appellant, Mr.
Satya Narayan Prasad, learned Additional Public Prosecutor for
the State and Mr. Prince Kumar Mishra, learned counsel for the
Respondent Nos. 2 to 5.
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2. The present appeal has been preferred under
Section proviso to Section 372 of the Code of Criminal
Procedure (hereinafter referred to as ‘Cr.P.C.’) for setting aside
the judgment and order of acquittal dated 06.04.2023
(hereinafter referred to as the ‘impugned judgment’) passed by
the learned Additional District and Sessions Judge-XXII,
Motihari, East Champaran (hereinafter referred to as the
‘learned Trial Court’) in Sessions Trial No. 116 of 1992 arising
out of Ghorasahan P.S. Case No. 124 of 1991. By the impugned
judgment, the respondent nos. 2 to 5 have been acquitted of the
charges punishable under Sections 302, 307, 324/34 of the
Indian Penal Code (in short ‘IPC’).
3. The records of this appeal have been placed
before this Court for consideration of the prayer of the
appellant, who is the son of the deceased and grandson of the
informant (now dead).
Prosecution Case
4. The case of the prosecution, as narrated by the
informant, namely, Kanti Thakur (PW-9) in his fardbeyan
recorded on 07.11.1991 at 11:15 hours, is that he had purchased
a plot of land measuring six dhur from Thakur Sah, Mahendra
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Sah and Laxman Sah in the name of his son Suresh Thakur and
nephew Jitendra Thakur in which four mango trees were
planted. On the same day at about 07:00-08:00 a.m., when the
informant was going from his door towards the road, he met
Rameshwar Thakur and asked him as to why he cut the
branches of his tree the day before, to which he did not respond
properly, rather started calling his sons, whereupon his son
Akhileshwar Thakur armed with chura, brother Ranjeet Thakur
armed with bhala, nephew Brijkishore Thakur armed with farsa,
Raju Thakur and Rajan Thakur, armed with lathi came and
surrounded him. Brij Kishore Thakur attacked the informant on
his head by farsa due to which he got cut injury and when he
fell down, Brij Kishore Thakur again assaulted him on his left
elbow causing bleeding injury. Ranjeet Thakur then attacked
him on his chest by bhala causing bleeding injury. When the
informant raised hulla, his son Suresh Thakur came running,
who was attacked by Akhileshwar Thakur on his back by
chhura due to which he fell down, whereafter Rameshwar
Thakur assaulted him on his chest by chhura. Akhileshwar
Thakur also attacked Suresh by chhura which hit him on the
middle finger of right hand.
It was further alleged that during the
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occurrence, when the informant’s brother Satyanarayan Sharma
came to save him, Brijkishore Thakur assaulted him with farsa
on his head due to which he also fell down while Rajan Thakur
assaulted him by lathi. When Jitendra Thakur came to save
them, Brijkishore Thakur injured him by hitting him with farsa,
causing him head injury. Thereafter, Kishunpuri Devi and Kanti
Devi came running from house who were also assaulted by the
accused persons causing injury on finger and shoulder
respectively. The incident was witnessed by others also. All the
injured persons were lying in the paddy field of Ramchandra
Thakur. Suresh Thakur died at the place of occurrence and the
accused persons fled away.
5. On the basis of the aforesaid fardbeyan, the First
Information Report (in short ‘FIR’) being Ghorasahan P.S. Case
No. 124 of 1991 dated 07.11.1991 was initiated under Sections
302, 324, 326, 307, 342, 323/34 of the Indian Penal Code (in
short ‘IPC’) against accused persons, namely, (1) Brijkishore
Thakur, (R-2) Raju Thakur, (R-3) Akhileshwar Thakur, (R-4)
Ranjeet Thakur, (R-5) Rajan Thakur, and (6) Rameshwar
Thakur (now dead). After investigation, police submitted
chargesheet on 10.02.1992 under Sections 302, 307, 324/34 of
the IPC. Accordingly, cognizance was taken and accused were
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put on trial.
6. Out of six accused persons, the trial of Rajan
Thakur was transferred to learned Juvenile Court, Motihari vide
order dated 24.06.1992 while the trial proceeded against the
rest. After commitment of the case to the Court of Sessions,
charges were framed against them vide order dated 01.10.1993
under Sections 302, 307, 324/34 of the IPC, to which they
pleaded not guilty and claimed to be tried. The name of accused
Rameshwar Thakur was however subsequently deleted vide
order dated 26.04.2005, on account of his death.
7. During the course of trial, the prosecution has
examined altogether twelve witnesses and exhibited several
documents, while the defence has also examined four witnesses
and also adduced documentary evidence. The description of the
prosecution and the defence witnesses, as also the documents
exhibited on their behalf are mentioned hereinbelow in tabular
form:-
List of Prosecution Witnesses
P.W. No. Name of Witness Description
1 Saroj thakur Injured witness
2 Jitendra Kumar Injured witness
3 Kamlesh Mishra Injured witness
4 Krishnachandra Thakur Injured witness
5 Kushumpari Devi Injured witness
6 Kanti Devi Injured witness
7 Rakesh Kumar Injured witness
8 Ram Ayodhya Mishra Formal witness
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9 Kanti Thakur Informant
10 Dr. Niraj Sinha Doctor
11 Dr. Serajul Hak Doctor
12 Kamrul Hoda Khan I.O.
List of Exhibits on behalf of the Prosecution
Exhibit No. Description of the Exhibit Proved
by/Attested by
01&01/01 Carbon copies of two seizure lists PW-8
02 Carbon copy of inquest report PW-8
03 Fardbeyan PW-9
04 Writing and Signature of formal FIR PW-9
05 Postmortem Report PW-10
06-06/6 Injury reports of Rakesh Kumar, Satyanarayan PW-11
Sharma, Shrikanti Thakur, Shrikanti Devi, Jitendra
Kumar, Kishunpari Devi, Shri Krishnachandra Thakur
07-07/06 Seven requisitions issued by the I.O. to the Medical PW-12
Officer for examination of injured Rakesh,
Satyanarayan Sharma, Shrimati Kanti Devi, Jitendra
Thakur, Kishunpari Devi, Krishnachandra
List of Defence Witnesses
D.W. No. Name of Witness Description
1 Shambhu Prasad Formal Witness
2 Shatrughan Prasad Formal Witness
3 Krishna Singh Formal Witness
4 Radhe Shyam Kumar Formal Witness
List of Exhibits on behalf of Defence
Exhibit Description of the Exhibit Proved by/Attested by
No.
A Carbon copy of one injury report of Rajan DW-1
Thakur
B Provisional matriculation certificate of the Public document
accused Akhileshwar Thakur
A/1, A/2 Carbon copy of two injury reports of DW-1
Akhileshwar Thakur and Ranjeet Thakur under
the signature of Dr. V.N. Tiwary
C, C/1 Writing and Signature of formal FIR DW-2
D Requisition for certified copy of Ghorasahni DW-3
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P.S. Case No. 140/1986
E Certified copy of charge-sheet of Ghorasahni DW-3
P.S. Case No. 140 of 1986
F Writing of Janampatri Tippan DW-4
8. After closure of prosecution evidence, the statements
of Respondent Nos. 2 to 5 were recorded under Section 313 of the
Cr.P.C. on 16.07.1999, wherein they denied the allegations and
pleaded innocence.
9. Before moving on to the findings of the learned Trial
Court, it would be imperative to point out the developments that
took place at the stage of argument of the case. It is noticed from
the records that there was non-compliance of section 207 of the
Cr.P.C. at the time of commitment of the case and taking note of
such irregularity, the Trial Court was pleased to transmit back the
records to the Court of the learned magistrate for compliance with
the requirements of Section 207 of the Cr.P.C. Pursuant to
compliance of the said provision on 18.08.2004, the records were
again committed to the Court of Sessions, and on the date fixed for
charge, i.e., on 05.07.2007, the learned trial court proceeded to
pass an order stating therein that there is no requirement of fresh
framing of charge or the recall of the witnesses for further cross-
examination as the irregularity was removed by compliance on
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18.08.2004 and the case was posted to 16.08.2007 for final
argument.
10. However, the said order dated 05.07.2007 was
challenged before the High Court vide Cr. Misc. No.53398 of 2007
which was disposed off by an order dated 03.09.2010, giving the
accused persons a fresh opportunity for cross-examination of all
the witnesses from that stage and also directed the Trial court to
proceed to summon the witnesses for their cross-examination and
dispose off the trial in accordance with law.
11. In pursuance of the order dated 03.09.2010, passed
in Cr. Misc. No. 53398 of 2007, summons were issued to the
witnesses for their cross-examination and PWs 1 to 4, 7 and 8 were
cross-examined and discharged and fresh statements of the accused
persons were recorded under section 313 Cr.P.C. on 01.04.2023,
wherein they again denied allegations and pleaded innocence.
Findings of the learned Trial Court
12. Learned trial court, after analysing the evidence
available on the record, found that the prosecution has not been
able to prove its case beyond all reasonable doubts against
Respondent Nos. 2 to 5. It was noticed that PW-1 (Saroj Thakur) in
paragraph 17 of his subsequent cross-examination stated that
occurrence took place in the month of November and the weather
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was foggy and due to fog not even one or one and half feet
distance was visible, hence, he did not see who assaulted whom.
13. The learned Trial Court further took note of
paragraphs 20 and 21 of the deposition of PW-2, paragraph 54 of
PW-4, paragraph 21 of PW-7, paragraph 42 of PW-8 which were
all recorded upon their subsequent cross-examination, which also
indicated that these witnesses were not eyewitness to the
occurrence and further negated the presence of the accused persons
at the place of occurrence. The learned Trial Court also found PW-
3 untrustworthy in view of the evidence of PW-8 who had stated
that he along with PW-3 had come to the place of occurrence only
on the next day from their village, after having received
information about the incident.
14. Thus, in view of the learned Trial Court, PWs 1 to
4, 7 and 8 have supported prosecution case in their examination-in-
chief but they have not stood the test of their cross-examination as
it has been said that they did not see the occurrence. Remaining
witnesses were not produced despite prosecution having been
given the said opportunity.
15. Accordingly, learned Trial Court after considering
all facts and circumstances of the case, as stated above, finding the
prosecution witnesses unreliable, concluded that the prosecution
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has not been able to prove the charges levelled against Respondent
Nos. 2 to 5 under Sections 302, 307, 324/34 IPC beyond the
shadow of reasonable doubts. Hence, learned Trial Court acquitted
Respondent Nos. 2 to 5.
Submission on behalf of the appellant
16. Mr. Ajay Kumar Thakur, learned counsel appearing
on behalf of the appellant submits that the learned Trial Court
while passing the judgment of acquittal has grossly erred in
reaching its conclusion only on the basis and consideration of the
further/subsequent cross-examination of the prosecution witnesses
being PWs-1, 2, 3, 4, 7 and 8. There is no consideration of the
earlier cross-examination of these witnesses or the other witnesses
whereas a proper consideration of the deposition of the prosecution
witnesses including their examination-in-chief and their earlier
cross-examination would have clearly led to the conviction of the
respondents (accused persons) as by way of the said evidence the
prosecution had clearly established its case beyond the shadow of
reasonable doubt, taking into account the fact that the witnesses
had stood the test of cross-examination.
17. Learned counsel has most emphatically contended
that while considering the evidence of the prosecution witnesses,
the learned Trial Court ought to have considered the entire
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evidence and merely on the basis of the fact that these witnesses
have been further cross-examined, their earlier cross-examination
does not get effaced or wiped out. It has further been submitted
that besides the learned Trial Court ignoring the earlier cross-
examination of PWs 1 to 4, 7 and 8, the examination and cross-
examination of the other prosecution witnesses including the
informant of the case, being that of PWs-5, 6 and 9, was available
on record but the same has been totally overlooked by the learned
Trial Court as they were not available for their subsequent cross-
examination on account of their death. In this connection Section
33 of the Indian Evidence Act has been referred and it has been
submitted that the learned Trial Court has acted in contravention of
the said provision.
18. Further submission on behalf of the appellant is
that the learned Trial Court has also failed to take effective steps
for producing the official witnesses i.e., the I.O. and the doctor
whose testimonies lent strength to the prosecution case and the
learned Trial Court acted in haste in recording statements of
accused under Section 313 Cr.P.C. and without giving a proper
opportunity of argument, the judgment of acquittal was
pronounced on 06.04.2023.
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19. A reference has been made to the Judgment of
Hon’ble Supreme Court in case of V.M. Mathew vs. V.S. Sharma
reported in AIR 1996 SC 109, in connection with Section 33 of
the Evidence Act by especially referring to paragraph 4, 6, 7 and
11 of the said judgment. The case of Nisar Khan and Ors. vs.
State of Uttranchal reported in (2006) 9 SCC 386 has also been
referred to on behalf of the appellant to submit that in case the
witnesses who turned hostile and resiled from their previous
statement on their re-examination by defence on recall, the
testimony of such witnesses cannot be rejected only on the ground
that they had turned hostile, rather it was held in the said judgment
that an application filed by the accused to recall the eye-witnesses
after lapse of more than one year, after they were examined, cross-
examined and discharged, should not have been allowed as they
were recalled only on being gained over.
20. On the afore-mentioned grounds, it has been
contended on behalf of the appellant that the impugned judgment
of acquittal is against the weight of evidence and has also been
passed in contravention of law, as such, the same is fit to be set
aside and the respondents deserve to be convicted.
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Submission on behalf of the respondents
21. Mr. Prince Kumar Mishra, learned counsel for the
respondents, per contra, has submitted that the judgment of the
learned Trial Court does not suffer from any infirmity as it is based
on sound reasons. It is submitted that the witnesses of the
prosecution were directed to be produced for subsequent cross-
examination by the order of the Hon’ble High Court passed on the
legal ground of non-compliance of the provision of Section 207
Cr.P.C.,i.e., non supply of police paper to the accused, as such
requirement is integral to the fundamental right to a fair trial under
Article 21 of the Indian Constitution as held by the Hon’ble
Supreme Court in various judicial pronouncements such as
Hussainara Khatoon vs. State of Bihar reported in (1980) 1
SCC 81 and Zahira Habibullah Sheikh vs. State of Gujarat
reported in (2006) 3 SCC 374. It has further been submitted that
the said order of the Hon’ble High Court was never challenged and
had thus attained finality.
22. The learned counsel has laid emphasis on the
mandatory nature of Section 207 Cr.P.C. and requirement of strict
compliance thereof, referring to the judgment rendered by this
Court in the case of State of Bihar vs. Md. Major, Death
Reference No. 01 of 2022, reported in 2022 (5) BLJ 302. As
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such,the significance of the contents of the subsequent cross-
examination stands well established. It has thus been submitted
that the learned Trial Court has made no error by considering and
also basing its judgment on the subsequent cross-examination of
the prosecution witnesses read with their examination-in-chief as
the said cross-examination was done after due compliance of
Section 207 Cr.P.C. and the evidence recorded in breach of Section
207 Cr.P.C. cannot be safely relied upon.
23. It has been pointed out on behalf of the respondents
that, as many as, six prosecution witnesses which includes four
injured witnesses, were produced for subsequent cross-
examination but they have failed to stand the test of the same and
have not supported the case of the prosecution as eye-witnesses.
They have rather stated that they had reached the place of
occurrence after the incident and they did not see the assailants.
Moreover, so far as the test of prejudice is concerned, the
prosecution would bear the burden to prove absence of prejudice,
particularly when statutory safeguards like Section 207 Cr.P.C. are
breached.
24. The final argument on behalf of the respondents
has been made with regard to double presumption of innocence
available to the respondents (accused) in case of an acquittal and
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that in absence of compelling reasons and possibility of two views,
the impugned judgment of acquittal may not be interfered with.
Analysis and Consideration
25. We have given our thoughtful consideration to the
submissions advanced by the learned counsel for the
appellant/victim and learned APP for the State and the learned
counsel for the respondent nos. 2 to 5 and considered and analysed
the impugned judgment and materials on record, including both
oral and documentary evidence adduced by the prosecution and
defence.
26. Before going on to the analysis of the evidence, this
Court is conscious and alive to the fact that the respondents had
approached this Court earlier by filing Cr. Misc. No. No.53398 of
2007, challenging the order of the learned Trial court whereby
fresh framing of charge or recall of the witnesses for their cross-
examination on grounds of non-compliance of the requirement of
law as contemplated under Section 207 of the Cr.P.C. was refused
and matter was posted for argument. However, they later confined
their prayer to be given fresh opportunity to cross-examine all the
witnesses with the assurance that they shall complete the cross-
examination of the witnesses on the date they are produced. The
High Court, by an order dated 03.09.2010, allowed the said prayer
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by setting aside the order of the learned Trial Court directing it to
proceed to summon the witnesses examined in the said case for
their cross-examination whereafter the trial would be disposed of
in accordance with law and this order of the High Court remained
unchallenged.
27.The prosecution, in order to substantiate its case,
examined as many as 12 witnesses, out of whom PWs-1 to 9 are
the witnesses on the point of occurrence and amongst them PW-
2(Jitendra Kumar), PW-4 (Krishna Chandra Thakur), PW-5
(Kishun Pari Devi), PW-6 (Kanti Devi), PW-7 (Rakesh Kumar)
and PW-9 (Kanti Thakur), who is also the informant of the case,
claim to be injured eye-witnesses. PW-1 (Saroj Thakur) also
claims to be an eye-witness of the occurrence, while PW-8 (Ram
Ayodhya Mishra) has been examined in the nature of a formal
witness, who has proved the seizure list (Exhibit ‘1’) and is also a
signatory on the inquest report of the deceased (Exhibit ‘2’). PW10
(Dr. Neeraj Sinha) and PW-11 (Dr. Sirajul Haque) are the Medical
Officers, who have conducted the postmortem examination on the
body of the deceased Suresh Thakur (Exhibit ‘5’) and examined
the injuries of the injured persons (Exhibit ‘6-6/6’) respectively.
The Investigating Officer has been examined as PW-12.
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28. This Court would now proceed to discuss and
analyze the prosecution witnesses. To begin with, PW-1 Saroj
Thakur, an injured witness, he has stated in his examination-
in-chief that he had gone to the place of occurrence after
getting information and saw the accused persons, namely,
Rameshwar Thakur, Akhileshwar Thakur, Sanjeev Thakur,
Brajesh Thakur and one another armed with knife, bhala,
farsa, lathi etc. He has given the details of assault upon the
informant Kanti Thakur (PW-9) by accused Brijkishore
Thakur by means of farsa and assault by Sanjeev Thakur and
upon his scream, his son Suresh Thakur (deceased) and others
reached the place of occurrence. This witness has further
deposed that Akhileshwar Thakur gave two knife blows to
Suresh Thakur on the ribcage area and on the right hand on
account of which he fell down. Thereafter, Satyanarayan
Sharma, Jitendra (PW-2), Rakesh Thakur (PW-7) mother of
PW-2 and Bholi @ Chandan Thakur, who came to the place of
occurrence, were also assaulted by farsa and lathi. It has been
stated that the death of Suresh Thakur took place at the place
of occurrence itself, i.e. the maize field of Ramchandra
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Thakur, on account of injury received. He has also stated that
one day prior to the occurrence, accused Rameshwar Thakur
had cut the branch of mango tree of Kanti Thakur (informant)
PW-9 due to which some quarrel had taken place.
29. In his cross-examination, this witness has stated
that he had seen the occurrence from the road. He admitted
that he received the information about the incident while he
was at home and upon reaching the place of occurrence, he
saw Kanti Thakur fallen on the ground with bleeding injuries
and also saw the injuries on 7-8 persons. In paragraph no. 13
of his evidence he has given details of assault by stating that
the farsa, bhala and knife were used with force and accused
Rameshwar Thakur had inflicted knife blow on the chest of
Suresh Thakur (deceased).
30. This witness was again subjected to cross-
examination in the light of the order of the High Court and
paragraphs 17 to 21 were recorded. In paragraph 17 of his
cross-examination he stated that the occurrence took place in
the month of November when it was very cold and foggy and
due to the fog the visibility was so low that things could not
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even been seen at a very short distance and people at the
distance of 1 and 1 ½ feet were also not visible. He further
deposed that the distance between his house and the maize
field of Ramchandra was about 70 to 80 feet and when he
heard the alarm, he was at the door of his house. Upon hearing
the hulla, he went to the said field and saw around 50-60
persons including Rakesh Kumar (PW-7), Jitendra Thakur
(PW-2), Bhuneshwar (N.E) and Kishun Devi (PW-5) in
injured condition, and made a categoric statement that he did
not see the accused persons at the said place. In paragraph
no.20 of his deposition the witness has stated that 50 to 60
persons were his co-villagers and he did not see any one either
being assaulted or engaged in assaulting. He has further stated
that he had given his earlier statement before police at the
instance of those 50 to 60 persons.
31. PW-2 Jitendra Kumar is an injured witness and
also claims to have reached the place of occurrence on hulla
and saw Kanti Thakur (PW-9), Satyanaran Sharma (N.E.) and
Suresh Thakur (deceased) fallen on the ground. He also saw
the accused persons with arms. He has narrated the details of
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assault upon him and other injured persons and that he
received the injury on the right side of his head while the
deceased had died on the spot.
32. In his cross-examination, he has accepted that
he came out of his bunglow on hulla and that the place of
occurrence is not visible from his bunglow. He has also stated
about the presence of blood at the place of occurrence where
the deceased had fallen.
33. Upon his subsequent cross-examination, as
recorded in paragraph 20 and 21, he made similar statement as
that of PW-1 denying having seen the assailants or the accused
persons at the place of occurrence. He further stated that
Kishunpari Devi (PW-5) arrived at the place of occurrence
after he left, while Kanti Thakur came after arrival of
Kishunpari Devi and both of them had fallen at the ridge of
the field, on account of which they suffered injuries.
34. Kamlesh Mishra, the brother-in-law of the
informant, was examined as PW-3 and he had also given
similar statement as PW-1 and PW-2 in examination-in-chief
as an eye-witness to the occurrence with some variance as he
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stated that Akhileshwar Thakur had assaulted the deceased
Suresh Thakur from the back by giving two knife blows on his
back while Rameshwar Thakur gave a knife blow on his chest.
In his cross-examination, he stated that when he reached the
place of occurrence two persons were already injured while
the assault was still going on. He further stated that no blood
stain was found at the place of mar-pit but blood was present
where Suresh Thakur had fallen. He also deposed that while
other injured persons remained in hospital for 3 to 4 days, he
stayed for one day in hospital. Further, he did not remember as
to after how many days of the occurrence he had given his
statement before the police.
35. Upon being subsequently cross-examined, he
stated in paragraph no.16 that the time of occurrence was the
month of November and the cold weather had begun,
however, there was no fog. In paragraph no. 20, he stated that
his eye sight from one eye is damaged since past 15 years.
Further, in paragraph no.21 he had stated that he did not go to
the place where Kanti Thakur and Suresh Thakur had fallen and
went near the deceased after half an hour of occurrence after the
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accused persons had left. This witness was re-called for cross-
examination again wherein he admitted that Ram Ayodhya
Mishra PW.-8 was his Pattidar and also his neighbour in his
village. He has denied the fact that he along with his brother
Ram Ayodhya Mishra PW-8 came to the P.O. village one day
later, after having heard of the occurrence, but accepted that
on the date of occurrence he had no talk with any person
either from village Nimuia or from his village.
36. PW-4, Krishan Chandra Thakur, has deposed on
similar lines as other witnesses claiming himself as an injured
eye-witness who came to the place of occurrence on hulla. In
his cross-examination he has admitted that Kanti Thakur,
informant, is his first cousin and both the parties are agnates.
Altogether nine persons, including him, got injured in the
incident which arose on account of cutting of branch of mango
tree by Rameshwar Thakur, with abuse and scuffle which later
escalated into the present incident. He states about the
presence of blood and blood-stained weapons at the place of
occurrence.
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37. His subsequent cross-examination recorded in
paragraph no.54 reveals that it was very cold and foggy at the
time of occurrence in the month of November. He stated that
the field of Ramchandra was not visible from his house and he
did not see anyone being assaulted by his own eyes. He has
also made a categoric statement that he did not see the accused
persons at the place of occurrence and they were not involved
in the occurrence. Further, Kishunpari Devi (PW-5) came after
he had gone.
38. PW-5, Kishunpari Devi, wife of the informant
Kanti Thakur, has also claimed to be an injured eye-witness to
the occurrence as she came out on hulla. In her cross-
examination, she has related to the cause of occurrence and
has stated that as soon as she reached the place of occurrence
she saw Rameshwar Thakur along with other accused persons
and she fell unconscious for some time.
39. PW-6, Kanti Devi, sister-in-law of the
informant, happens to be a tendered witness and in her cross-
examination she disclosed that the dispute had taken place
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between the parties on account of cutting of branch of mango
tree.
40. We have also gone through the evidence of PW-
7 Rakesh Kumar also claiming to be an injured eye-witness
and in his cross-examination also he has narrated the details of
assault, however, in his later cross-examination in light of the
order of the High Court, he has categorically stated that it was
a very cold and foggy morning and he did not see anyone
being assaulted by his own eyes and he could not even see as
to who assaulted him. He further denied to have seen the
accused persons, who were his co-villagers, at the place of
occurrence.
41. PW-8, Ram Ayodhya Mishra, is a formal
witness who is a signatory to the seizure lists of arms (Ext.1 &
1/1) and also on the inquest report of the deceased (Ext.2). He
has admitted in his cross-examination that he is the cousin
brother of PW-3. However, in his subsequent cross-
examination he has stated that his house and the house of
PW-3 is in village Dola Pakaria and they received the
information about the death of Suresh Thakur on the next day
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of occurrence whereafter he along with PW-3 went to village
Nimuia and no one there disclosed the name of the assailants.
He denied to be an eyewitness to the occurrence. Thus, it
appears that the evidence of PW-8 poses a serious challenge to
the credibility of PW-3 as his very presence at the place of
occurrence at the relevant time is being doubted.
42. Kanti Thakur, the informant, was examined as
PW-9 and he, claiming himself to be an injured eyewitness,
has supported the case of the prosecution, giving vivid details
of earlier land-related dispute between the parties and the
details of assault. In his cross-examination he stated that the
deceased Suresh Thakur was the first to reach the place of
occurrence in order to save him but he did not get an
opportunity to talk to him as he was stabbed on his arrival.
The statement of the informant was recorded in the hospital
after he got admitted.
43. Dr. Niraj Sinha, the doctor who conducted the
post-mortem examination on the person of the deceased
Suresh Thakur, was examined as PW-10. He conducted the
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post-mortem examination on 08.11.1991 at 10:00 a.m. and
found the following antemortem injuries:-
(i) Sharp cutting wound 1’’ x ½’’
, cavity deep at epiglottis region.
(ii) Lacerated wound on fingers
of right hand index, middle and ring fingers
extending whole of the fingers.
(iii) Sharp cut on left lumber
region measuring 2’’ x 1’’ x abdominal cavity
deep.
(iv) Sharp cut on left side of
spine measuring 1’’ x ½’’ x muscle deep.
44. It was opined that the above injuries were
caused by hard and sharp substance such as ‘Chhura’ and the
cause of death was hemorrhage and shock. The post-mortem
report was marked as Exhibit-5. In the cross-examination by
the defence, the doctor had opined that spear may have been
used for causing injury no.(i), however, such injury may also
be caused in course of running, if a man falls on a sharp
pointed substance. He has further stated in paragraph no.22
of his deposition that from the injuries found on the person
of the deceased, it cannot be said that he was given lathi
blow. With regard to injury no.(iii) it has been stated that it
could not have been caused by hard blow otherwise it would
have penetrated inside. As against the specific oral evidence
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of bhala or knife blow on chest of the deceased, the doctor
has stated that no sharp cutting injury was found on the
chest, no clear cut injury of sharp cut was found on the
fingers and no injury was either found on the elbow of the
deceased. Thus, the medical evidence vis-à-vis the ocular
testimony, gives rise to substantial conflict between the two.
45. PW-11, Md. Serajul Haque, is the doctor who
examined the injuries of other injured persons being PWs 2, 4, 5,
7, 9 and one Satyanarayan Sharma on 07.11.1991 at different
hours of the day, as would be evident from his deposition, and the
injuries on all these persons were found to be simple in nature.
From the cross-examination it transpires that although this
witness has treated the injured persons, the injury report does not
indicate what treatment they had been given. Neither the doctor
nor the hospital has any other document which would show as to
what treatment was given to the injured persons. He has further
stated that such injuries are possible if one falls on sharp
substance and can also be manufactured if some risk is taken.
46. The Investigating Officer of the case is one Kamrul
Hoda Khan examined as PW-12. On 07.11.1991 while he was
posted as S.H.O. of Ghorasahan P.S., he received O.D. slip from
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the local hospital at around 11:05 a.m. whereafter he recorded a
sanha entry and proceeded for the hospital where he recorded the
fardbeyan of Shri Kanti Thakur at 11:15 a.m. (Ext.3). He
recorded the further statement of the informant and inspected the
injuries of the injured persons and even took the statement of 3 to
6 injured persons in the hospital. He then inspected the place of
occurrence which was the maize field of Ramchandra Thakur and
found some blood nearby and also found a cut branch of mango
tree. Some trampling marks, blood-stained soil, knife and garasa
were found and seizure list was prepared (Ext.1/1). Further, the
dead body of the deceased Suresh Thakur was found at a distance
of 50 feet from the place of occurrence kept on a cot and inquest
report was prepared (Ext.2). The seizure list of one farsa and two
lathis seized from the house of accused Rameshwar Thakur was
also prepared (Ext.1).
47. In his cross-examination he has acknowledged a
counter case having been lodged on the same day stating therein
that five persons in the other case were also injured. The cross-
examination further indicates that no blood stain was found near
the dead body. Further, the defence has drawn some
contradictions with regard to the statements of PWs 1, 2 and 3
made before him during investigation.
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48. After having discussed the evidence of the
prosecution witnesses, it is gathered that PWs 1 to 7 and 9
are related witnesses and they have supported the case of
prosecution with regard to the manner of occurrence, place
of occurrence, and genesis of the said incident in their
examination-in-chief. Further, the aforesaid witnesses in
their cross-examination have by and large supported the
prosecution case with certain discrepancies and
contradictions. PWs 8, 10 to 12 are the formal witnesses who
have also been examined and cross-examined at length, and
their testimonies broadly lend support to the case of
prosecution. However, in their subsequent cross-
examination, pursuant to the order of the High Court dated
03.09.2010, PWs 1 to 4, 7 and 8 were again cross-examined,
wherein they completely resiled from their earlier stance,
thereby not supporting the prosecution case and due to
eventual death of PWs 5,6 and 9, they were not subjected to
subsequent cross-examination. Although, the summons were
issued to the formal witnesses, i.e; PWs 10, 11 and 12, their
appearance could not be secured for the said purpose.
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49. For the purpose of proper adjudication of the
present case, this court deems it appropriate to frame certain
issues which are being enumerated hereinunder:
Issue No.1: Whether the plea of non-compliance of
Section 207 of the Cr.P.C. can be raised at any stage of the
trial, and can the accused be precluded from raising such
issue belatedly at an advanced stage of trial?
Issue No.2: Whether the learned Trial Court
committed an error by not considering the earlier cross-
examination of the prosecution witnesses which was done
without the compliance of section 207 of the Cr.P.C?
Issue No.3: Whether judicial propriety demands
that this Court needs to delve into the question of fair trial
which mandates the compliance of the basic requirements of
a fairly conducted trial, considering that such indefeasible
right of the accused, emanating from the Constitution of
India, has been breached?
Issue No.4: Whether this court ought to take into
consideration the question that the conviction can only be
legal and not moral under criminal jurisprudence?
Issue No. 5: Whether in view of the law laid down
by several judicial pronouncements, this court, being an
appellate court, should interfere with the impugned judgment
of acquittal passed by the learned Trial Court, in case two
views, one of conviction and other of acquittal, are both
possible?
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50. Issues no. 1 and 2 are being dealt together as
they are inter-linked with each other. Before discussing the
present issues, it would be first necessary to quote the
relevant portions of the order of the Trial court which held
that since the irregularity relating to non-compliance of
Sections 207 and 209 Cr.P.C. was already removed, there
was no need for fresh charge or recall of witnesses for
further cross-examination and the order of the High Court
which noticed the defect found in the trial not being a
curable one, set-aside the order of the Trial Court and
directed for the summoning of witnesses for their cross-
examination.
Order dated 05.07.2007: (Trial Court)
05/07/2007 “Today the date is fixed for order on the point
of charge………
It was ordered that the compliance under Section
207 Cr.P.C. and 209 Cr.PC. is not in order and it
was sent to the lower court which was complied on
18.8.04 and the case was rebacked before the trial
court and this is a case of bonafide irregularity and
it can be removed at any stage before an
announcement of judgment. Under the facts and
circumstances of the case there is no need of fresh
charge or the recall of the witnesses for further
cross-examination in order to demolish the
prosecution case under Section 302 IPC. The
trends of the accused persons shows that now they
have got the informant and injured in their own
favour.
In my view there is no need to frame charge
against all the accused persons.
To 16.08.07 for final argument.”
Order dated 03.09.2010: (High Court)
03. 03.09.2010 Heard counsel for the parties.
Petitioners call in question the order dated 05.07.2007, passed
by learned 3rd Addl. Sessions Judge, Motihari in Sessions Trial No.116 of
1992. By this order, learned Magistrate fixed the case for final argument in
the following circumstances:……………………………………………………….
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Counsel for the petitioners takes a stand before this Court that in view of
the facts of the case, he would not insist on a fresh framing of charge
and/or fresh examination(s) in chief of the witnesses who have already
appeared and adduced evidence, but the accused should be given fresh
opportunity for cross examination of all the witnesses. Learned counsel
further assures the Court that the accused shall fully co-operate with the
case and shall complete the cross-examination of the witnesses on the
date they are produced.
Having regard to the aforesaid fair stand of the petitioners, and also
having noticed the defect which was found in the trial was not curable
one, this Court is inclined to interfere with the order impugned.
Consequently, the order dated 05.07.2007, passed by 3rd Addl. Sessions
Judge, Motihari in Sessions Trial No.116 of 1992 is set aside. Learned trial
court shall proceed to summon the witnesses examined in this case for
their cross-examinations and thereafter dispose of the trial in accordance
with law.”
51. The core issue is thus connected to the plea of
non-compliance of Section 207 of the Cr.P.C. and the
legality/illegality of the evidence which was adduced in
absence of such compliance.
Section 207 of the Cr.P.C.,1973 is being reproduced
hereunder for ready reference:
“207. Supply to the accused of copy of police report and other documents:-
In any case where the proceeding has been instituted on a police report, the
Magistrate shall without delay furnish to the accused, free of cost, a copy of
each of the following:
1. the police report;
2. the first information report recorded under section 154;
3. the statements recorded under Sub-Section (3) of section 161 of all
persons whom the prosecution proposes to examine as its witnesses,
excluding therefrom any part in regard to which a request for such
exclusion has been made by the police officer under Sub-Section (6)
of section 173;
4. the confessions and statements, if any, recorded under section 164;
5. any other document or relevant extract thereof forwarded to the
Magistrate with the police report under Sub-Section (5) of section
173:
Provided that the Magistrate may, after perusing any such pan of a
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statement as is referred to in clause (iii) and considering the reasons
given by the police officer for the request, direct that a copy of that
part of the statement or of such portion thereof as the Magistrate
thinks proper, shall be furnished to the accused:
Provided further that if the Magistrate is satisfied that any docu-
ment referred to in clause (v) is voluminous, he shall, instead of fur-
nishing the accused with a copy thereof, direct that he will only be
allowed to inspect it either personally or through pleader in Court.”
52. A bare reading of the said provision indicates its
mandatory nature with the use of the word “shall” and due
compliance of the same has to be made by the Magistrate at
the earliest opportunity. It is only thereafter that the case
would be committed to the Court of Sessions when such
offence is triable exclusively by it. The mandatory nature of
Section 207 of the Cr.P.C gets further strengthened by
section 209 of the Cr.P.C. dealing with the commitment of
the case to the Court of Sessions where the commitment is
ordered only after complying with the provisions of Sections
207 or 208 Cr.P.C., as the case maybe. Further, Section 238
of the Cr.P.C is another provision which deals with
compliance with Section 207 making it mandatory for the
Magistrate to satisfy himself at the commencement of the
trial that he has complied with the said provision. The whole
idea and scheme of these provisions rests on reinforcement
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of the right of the accused to a fair trial so that no prejudice
is caused to him on account of non-supply of the police
papers. In the case of P.Gopalkrishnan V. State of Kerala
reported in (2020) 9 SCC 161, the Hon’ble Supreme Court
held:
“21. Be that as it may, furnishing of documents to the accused
under Section 207 of the 1973 Code is a facet of right of the
accused to a fair trial enshrined in Article 21 of the Constitution.”
“22. Similarly, in V.K. Sasikala v. State [V.K. Sasikala v. State,
(2012) 9 SCC 771 : (2013) 1 SCC (Cri) 1010] , this Court held as
under:
“21. The issue that has emerged before us is, therefore, somewhat
larger than what has been projected by the State and what has been
dealt with by the High Court [V.K. Sasikala v. State, 2012 SCC
OnLine Kar 9209] . The question arising would no longer be one of
compliance or non-compliance with the provisions of Section 207
CrPC and would travel beyond the confines of the strict language
of the provisions of CrPC and touch upon the larger doctrine of a
free and fair trial that has been painstakingly built up by the courts
on a purposive interpretation of Article 21 of the Constitution. It is
not the stage of making of the request; the efflux of time that has
occurred or the prior conduct of the accused that is material. What
is of significance is if in a given situation the accused comes to the
court contending that some papers forwarded to the court by the
investigating agency have not been exhibited by the prosecution as
the same favours the accused the court must concede a right to the
accused to have an access to the said documents, if so claimed.
This, according to us, is the core issue in the case which must be
answered affirmatively. In this regard, we would like to be specific
in saying that we find it difficult to agree with the view [V.K.
Sasikala v. State, 2012 SCC OnLine Kar 9209] taken by the High
Court that the accused must be made to await the conclusion of the
trial to test the plea of prejudice that he may have raised. Such a
plea must be answered at the earliest and certainly before the
conclusion of the trial, even though it may be raised by the accused
belatedly. This is how the scales of justice in our criminal
jurisprudence have to be balanced.”
(emphasis supplied)
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53. The Hon’ble Apex Court has also greatly
emphasized on the statutory mandate of section 207 of the
Cr.P.C. linking it with the indefeasible right of the accused to
a fair trial in the case of Sunita Devi v. State of Bihar &
Anr. reported in AIR 2024 SC (Supp) 617 in the following
words:
“17. We make it clear that the right of an accused
would arise, in getting the documents relied upon
by the prosecution, after taking cognizance and
before framing of the charges. Therefore, between
taking cognizance and framing of charges, an
accused should have sufficient window to go
through the documents supplied to him as he is
entitled to be heard at a later stage.”
54. This court is also tempted to refer to a judgment
passed by a three judges bench of Hon’ble Supreme Court
reported in (2023) 2 SCC 353, Manoj & ors. V. State of
M.P., making reference to the case of Manu Sharma V.
NCT of Delhi reported in (2010) 6 SCC 1, wherein it was
held that the prosecution, as a matter of rule in all criminal
trials, must furnish the list of statements, documents, etc.
which are not relied upon by the investigating officer, giving
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a liberal and relevant meaning to Section 207 of the code and
the presiding officers of the courts must ensure such
compliance.
55. Section 207 Cr.P.C. thus imposes an obligation
to furnish the documents to the accused without any delay.
The scheme of the provisions expressly denotes that
compliance to the said provision must be made at the
commencement of the trial as Section 238 of the Cr.P.C.
warrants the Magistrate to satisfy himself that the aforesaid
provision is complied with, in order to enable the accused to
build and put up his defence effectively. Thus, considering
the mandatory character of the aforesaid provision we
proceed to answer Issue No.1 by stating that such plea of
non-compliance of Section 207 of the Cr.P.C. can be raised
at any stage of the trial and the accused cannot be precluded
from raising such issue even at the belated stage in view of
the law laid down in the case of V.K. Sasikala Vs. State
(2012) 9 SCC 771 which has been taken note of in the case
of P. Gopalkrishnan (supra).
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56. Reverting to the present case, the fact scenario
was such that the Trial Court had admitted the factum of
irregularity pertaining to compliance of Sections 207 and
209 of the Cr.P.C. and clearly indicated in its order dated
05.07.2007 (as quoted above). However, since the Trial
Court ordered that there was no need of fresh charge or recall
of witnesses for further cross-examination, the said order
was challenged by the accused before the High Court and a
Bench of this court, noticing the defect, allowed the said
challenge giving the defence a fresh opportunity for cross-
examination of all the witnesses, as was conceded by the
counsel for the defence.
57. At this stage, it becomes significant to note
that this order of the High Court was never challenged by the
prosecution, as such, it gained finality. In such view of the
fact that there was an irregularity in the trial and there was a
fresh commitment made and that the High Court had granted
fresh opportunity to the accused for cross-examination of
witnesses, no objection can now be raised to the plea of non-
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compliance of Section 207 of the Cr.P.C. being resorted to by
the accused at a belated stage.
58. In the above-mentioned situation where no
fresh charges were framed, and the High Court also granted a
fresh but limited opportunity for cross-examining the
prosecution witnesses, the entire trial did not get vitiated and
since the trial was not a denovo trial or re-trial, it would not
be proper to assume that all the earlier evidence adduced
during trial, gets effaced or wiped out. The learned Trial
Court while passing the impugned judgment did not take into
consideration the previous cross-examination of the
witnesses, which in our opinion, was an error and illegality
committed by the learned Trial Court and this answers the
Issue No.2 affirmatively. Nevertheless, the question still
remains as to whether by adducing evidence in absence of
compliance of the provision of Section 207 Cr.P.C., the right
of the accused to a fair trial gets in any way affected.
59. This takes us to the Issue No.3 relating to the
violation of the principle of fair trial which is one of the
necessary concomitants for ensuring compliance with the
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basic rule of law and which is also fundamental to the
constitutional mandate contained in Articles 20 and 21 of the
Constitution of India. The concept of fair trial is an integral
part of Article 21 of the Indian Constitution and has to be
followed in its letter and spirit as it concerns both the
accused and the victim. So far it concerns the accused, who
although presumed to be innocent during a criminal trial
unless proven guilty, has to be provided with the procedural
safeguards in order to prove his innocence and non-
compliance or any deviation from these procedural
safeguards, as provided in the Code of Criminal Procedure
would impede a fair trial. The Hon’ble Apex court in the
case of Sunita Devi (supra), elucidated the concept of fair
trial in the following words:
“9. A fair trial is the heart and soul of criminal jurisprudence. The
principle of democracy lies in a fair trial. It is not only a statutory
right, but also a human right, which would be violated when the
safeguards provided under the Statute are not followed. The
absence of a fair trial would seriously impair and violate the
fundamental rights guaranteed under Articles 14 and 21 of the
Constitution of India, 1950. What is important to be seen is the
existence of a failure of justice, which is obviously one of fact. A
mere violation per se would not vitiate the trial, especially when the
degree of substantivity exhibited in a statute is minimal.”
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60. Thus, it was held in the above-mentioned
judgment that a fair trial would include due procedure with
adequate opportunities for all the stakeholders. It further held
that the procedural safeguards and its compliance are to be
kept in mind by the court, as any deviation might either
impact the prosecution or defence in a given case. We may,
in this regard, gainfully refer to the case of Rattiram Vs.
State of M.P reported in (2012) 4 SCC 516 by quoting
paragraph 39 and 40 of the said judgment:
“39. The question posed by us fundamentally relates to the non-
compliance with such interdict. The crux of the matter is whether it
is such a substantial interdict which impinges upon the fate of the
trial beyond any redemption or, for that matter it is such an
omission or it is such an act that defeats the basic conception of fair
trial. Fundamentally, a fair and impartial trial has a sacrosanct
purpose. It has a demonstrable object that the accused should not
be prejudiced. A fair trial is required to be conducted in such a
manner which would totally ostracise injustice, prejudice,
dishonesty and favouritism.”
“40. In Kalyani Baskar v. M.S. Sampoornam [(2007) 2 SCC 258 :
(2007) 1 SCC (Cri) 577] it has been laid down that “fair trial”
includes fair and proper opportunities allowed by law to the
accused to prove innocence and, therefore, adducing evidence in
support of the defence is a valuable right and denial of that right
means denial of fair trial. It is essential that the rules of procedure
designed to ensure justice should be scrupulously followed and the
courts should be zealous in seeing that there is no breach of them.”
61. Fair trial has also been succinctly discussed very
recently by a three-judges bench of Hon’ble Supreme Court
in the case of Sovaran Singh Prajapatti Vs. The State of
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U.P. reported in (2025) 2 SCR 1890: 2025 SCC OnLine SC
351, exhaustively dealing with the issue of compliance of the
basic requirements of a fairly conducted trial, in accordance
with the well-established legal propositions before imposing
death sentence upon the accused and concluded that since
there was a clear non-compliance of the principles of law
and the procedural rigors, both the judgments of the Trial
Court and the High Court were set-aside and the matter was
remanded to the Trial Court to proceed afresh from the stage
of framing of charge. The purpose of a trial, the statutory
mechanism regarding a trial before a Court of Session as
provided in the Cr.P.C. and the concept of a fair trial, being a
guarantee under Article 21 of the Constitution of India were
all discussed giving reference to several other judicial
pronouncements. Paragraph 10 of the said judgment is being
quoted as hereunder: -
“10. Fair and impartial administration of justice is a treasured
right protected by various enactments of law including, first and
foremost, the Constitution, which under Article 21 guarantees the
Right to Fair Trial. In numerous pronouncements, this Court has
underscored the same.”
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62. Now applying all these principles to the present
case where the trial had proceeded without compliance of the
provision of section 207 Cr.P.C., the proceedings before the
Trial Court were rendered defective as the said provision, as
discussed earlier, is couched with terminology which is of
mandatory character. The trial may not have vitiated
depending upon several considerations, including the fact
that the accused had infact cross-examined the prosecution
witnesses making the Trial Court presume that they may be
aware of the contents of the police-papers and also in
background of the fact that the trial had reached an advanced
stage, but the fact remains that the evidence adduced during
trial without the compliance of the statutory provision of
section 207 of the Cr.P.C. permits the accused to raise the
plea of denial of their valuable right of ‘fair trial’. Thus,
while taking into consideration the entire evidence on record,
the concept of fair trial needs to be kept in mind.
63. This Court, while analysing the rival
contentions, has also not lost sight of the fact that inordinate
delay has been caused in conclusion of the trial commencing
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from the year 1992 and ending in a judgment of acquittal in
the year 2023, which makes it an agonizing journey of about
32 long years of undergoing the rigours of a protracted trial.
This delay cannot be attributed to the defence alone, on
account of raising the plea of non-compliance of the
provision of section 207 Cr.P.C. at a belated stage, but it is
also the prosecution which delayed the production of
witnesses in pursuance of the order of the High Court for
fresh cross-examination in the year 2010. Thirteen long years
were spent in producing these witnesses for cross-
examination and in the meantime some of the witnesses,
including the informant, were even dead, while the presence
of some, like the I.O. could not be procured despite issuance
of summons.
64. An argument has also been raised on behalf of
the appellant that the trial court did not take adequate steps
for subsequent cross-examination of the I.O. but we gather
from the records of the case that summons were issued for
his appearance but it may be said that effective steps towards
his appearance were not taken. The records indicate that the
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I.O., at the time of recording of his deposition in the year
1998, was aged about 51 years and in case a question with
regard to remanding the matter for recording his fresh/further
cross-examination is to be considered, it is to be borne in
mind that almost 35 years have lapsed since the date of
occurrence and at least 28 years have lapsed since the date of
deposition of the I.O. and there can be no guarantee of this
witness being even alive or at least having capacity or
capability of any recollection of events.
65. It is not a normal situation wherein the court
can contemplate on remanding the matter as there is such a
huge lapse of time. Moreover, no definite prejudice is being
caused by non-subjecting of the I.O. to subsequent cross-
examination as his evidence could be used for bringing out
corroboration or contradiction and would be based upon
materials collected during investigation, including the
statements of the witnesses recorded under Section 161
Cr.P.C. during investigation. However, the evidence based on
such statements of witnesses recorded during investigation
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would not have primacy over the statements made by the
prosecution witnesses during trial.
66. The evidence of the I.O. however makes a
reference to the seizure lists prepared by him of some
incriminating articles showing collection of objective
evidence from the place of occurrence but it also needs to be
considered that out of the two seizure list witnesses, one
Raja Thakur was never examined by the prosecution, while
the other Ram Ayodhya Mishra (PW8) had initially
supported the said recovery in his examination-in-chief but
his cross-examination recorded in para 7, 8, and 13 indicates
several inconsistencies raising certain doubts upon a valid
seizure, while his subsequent cross-examination, after
remand of the matter, totally belies his earlier statements of
being even present on the date of occurrence. It is also a fact
that the seized articles were never sent for any forensic
examination and hence, the veracity of the entire seizure
becomes highly doubtful.
67. We now come to the question as to whether the
entire evidence on record being considered in its totality
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would be sufficient to record a conviction of the accused
persons and whether it would be proper for this court to
upset the impugned judgment of acquittal passed by the
learned Trial court in case two views were possible. Both the
Issues Nos. 4 and 5 are thus being taken up together.
68. The evidence led by the prosecution by way of
deposition of witnesses in their examination-in-chief no
doubt supported the case of the prosecution. The cross-
examination of these witnesses raised certain inconsistencies
and discrepancies but by and large they did not go to the root
of the prosecution case. We also gather from the evidence
that the prosecution witnesses are all related to each other
and are inimically disposed towards the accused persons who
were also their agnates/pattidars having a dispute between
them. The evidence discloses that the entire matter escalated
on a petty issue of cutting of branch of a mango tree which
was being claimed by both the parties.
69. We have also noted that besides the deceased
(Suresh thakur) other witnesses also got injured in the
incident and the testimony of these injured witnesses cannot
Patna High Court CR. APP (DB) No.763 of 2023 dt.19-06-2026
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be brushed aside or discarded lightly unless strong and
compelling grounds exist. However, it is also a fact that
before a court accepts the testimony of the injured
eyewitness, it has to be satisfied that he is a truthful witness
and has no reason to falsely implicate the accused persons. It
has been held in the case of Santosh Prasad Vs. State of
Bihar reported in (2020) 3 SCC 443 that an injured witness
would ordinarily not lie as to actual assailants but there can
be no presumption for assuming that such statement is
always correct or without any embellishments or
exaggeration.
70. The issue that assumes significance at this stage
is that at least six out of nine private witnesses, being PWs 1
to 4, 7 and 8 in their subsequent cross-examination, did not
support the case of the prosecution as an eyewitness. The
informant (PW9), his wife (PW6) and also PW5 died during
the pendency of the trial and could not be subjected to
fresh/further cross-examination. We have already discussed
in the preceding paragraphs the contents of the subsequent
cross-examination of these six witnesses which includes the
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alleged injured witnesses, wherein they have specifically
denied being eyewitness to the incident of assault and have
even expressly negated the presence of the accused persons
at the place of occurrence. We are thus, faced with a situation
where the prosecution witnesses, including alleged injured
witnesses, have given vacillating, inconsistent and self-
contradictory statements before and after the remand of the
matter.
71. A plea has been taken on behalf of the
prosecution that the witnesses were gained over. However,
there is nothing on record to indicate any such specific
objection having been taken earlier. The Hon’ble Supreme
Court in the case of State of U.P. V. Jaggo @ Jagdish, AIR
1971 SC 1586, while considering the question whether the
mere presentation of an application by the prosecution to the
effect that a certain witness had been “won over” was
conclusive of the allegation that he had been so “won over’,
negatived the said proposition in paragraph 16 of the said
judgment. Thus, the plea of ‘gain over’ being raised at this
stage is purely speculative in nature and it goes without
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saying that criminal jurisprudence is not based on mere
speculations.
72. The law is rather clear even in case of hostile
witnesses, that such part of the evidence of a hostile witness
which is either consistent with the case of prosecution or the
defence can be taken into account. Recently, in the case of
Talari Naresh Vs. The State of Telangana reported in
(2026) INSC 486, the Hon’ble Supreme Court held that the
testimony of a hostile witness could be used to discredit the
prosecution case and a conclusion of acquittal be well be
supported through it. Paragraph 9 of the said judgment is
quoted hereunder:
“9. Therefore, when the testimony of a hostile witness is
admissible subject to be feeded by corroboration and the
conviction on that basis could be arrived at, the reverse is
also true as a canon of appreciation of evidence. What
necessarily implies is that as the evidence of a hostile
witness can be used for convicting the accused, such
evidence could indeed be applied and utilised also for the
purpose of acquitting the accused, when what is testified by
the hostile witness inspires credibility, when read with the
other evidence on record, either ocular or documentary.
The dictum would be that the testimony of a hostile witness
or statement in the deposition of hostile witness could be
properly employed to discredit the prosecution case and a
conclusion of acquittal could well be supported through it
and could be founded thereon.”
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73. In the case at hand the situation is even better as
we are not dealing with hostile witnesses, but these witnesses
are full-fledged prosecution witnesses whose evidence is
binding on the prosecution. Thus, when the evidence of a
hostile witness can be employed for supporting a conclusion
of acquittal, there appears to be no impediment in
considering the testimony of full-fledged prosecution
witnesses in support of a finding of acquittal. The judgment
and the finding of a court have to be based on sound legal
principles and even if there are possibilities of the witnesses
changing their stand on account of lapse of time, being
gained over, etc., these considerations would be based upon
assumptions, presumptions and speculations. This court is
conscious of the fact that in criminal jurisprudence there is
no place for moral conviction rather the conviction has to be
legal, based on evidence. The consideration of this aspect
addresses the Issue No.4.
74. The Hon’ble Apex Court has dealt with the issue
of moral and legal conviction in the cases of Randeep Singh
Rana Vs. State of Haryana & Ors reported in (2024)
Patna High Court CR. APP (DB) No.763 of 2023 dt.19-06-2026
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SCCOnLine 3383 (para-17) and in case of Renuka Prasad
Vs. State Represented by Assistant Superintendent of
Police reported in (2025) SCCOnLine SC 1074. Paragraph
1 and 49 of the Renuka Prasad Case is being reproduced
hereunder :-
“1. Prevaricating witnesses, turning hostile in Court and
overzealous investigations, done in total ignorance of basic tenets
of criminal law, often reduces prosecution to a mockery. Witnesses
mount the box to disown prior statements, deny recoveries made,
feign ignorance of aggravating circumstances spoken of during
investigation and eye witnesses turn blind. Here is a classic case of
71 of the total 87 witnesses including eye- witnesses, turning
hostile, leaving the prosecution to stand on the testimony of the
police and official witnesses. Even a young boy, the crucial
eyewitness, who saw his father being hacked to death, failed to
identify the assailants.”
…………………………………………………………………………….
“49. We cannot but say that the High Court has egregiously erred
in convicting the accused on the evidence led and has jumped into
presumptions and assumptions based on the story scripted by the
prosecution without any legal evidence being available. Truth is
always a chimera and the illusion surrounding it can only be
removed by valid evidence led, either direct or indirect, and in the
event of it being circumstantial, providing a chain of circumstances
with connecting links leading to the conclusion of the guilt of the
accused and only the guilt of the accused, without leaving any
reasonable doubt for any hypothesis of innocence. We can only
accede to and share the consternation of the Division Bench of the
High Court, which borders on desperation, due to the futility of the
entire exercise. That is an occupational hazard, every judge should
learn to live with, which cannot be a motivation to tread the path of
righteousness and convict those accused somehow, even when there
is a total absence of legal evidence; to enter into a purely moral
conviction, total anathema to criminal jurisprudence. With a heavy
heart for the unsolved crime, but with absolutely no misgivings on
the issue of lack of evidence, against the accused arrayed, we acquit
the accused reversing the judgment of the High Court and restoring
that of the Trial Court.”
(emphasis
supplied)
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75. The entire discussion made hereinbefore leads
us to the last issue being Issue No.5, as to whether the
impugned judgment of acquittal passed by the learned Trial
Court is worth interference, in case two views are possible.
After having discussed and analyzed the entire evidence on
record in totality, considering both pre-remand and post-
remand cross-examination, we find that two views are
possible to be taken. We cannot lose sight of the fact that the
impugned judgment which is before us for consideration is a
judgment of acquittal and the accused persons have a double
presumption of innocence in their favor, one that the criminal
jurisprudence permits them to have unless they are proven
guilty and the other, reinforced by the impugned judgment of
the acquittal.
76. For reversing a finding of the acquittal, there
should be no doubt in the mind of the court that the
prosecution has been able to prove its case beyond all
reasonable doubts by way of unfettered and clinching
evidence. The moment an element of doubt creeps in and if
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evidence gives rise to two reasonable views, the Courts
ought to lean in favour of the view which supports the
accused, entitling them to benefit of doubt, as such, the
appellate court should not disturb the finding of acquittal
recorded by the Trial Court. The law is well settled in this
regard and in the case of Rajesh Prasad Vs. State of Bihar,
reported in (2022) 3 SCC 471, which also took note of the case
of Chandrappa v. State of Karnataka, reported in (2007) 4
SCC 415, the Hon’ble Apex Court outlined the general principles
that an appellate court must bear in mind, including that of
double presumption in favour of the accused. Paragraph-29 of
Rajesh Prasad (supra) is being quoted hereunder:
“29. After referring to a catena of judgments, this Court culled out
the following general principles regarding the powers of the
appellate court while dealing with an appeal against an order of
acquittal in the following words : (Chandrappa case [(2007) 4 SCC
415 : (2007) 2 SCC (Cri) 325] , SCC p. 432, para 42)
“42. From the above decisions, in our considered view, the
following general principles regarding powers of the appellate
court while dealing with an appeal against an order of acquittal
emerge
(1) An appellate court has full power to review, reappreciate and
reconsider the evidence upon which the order of acquittal is
founded.
(2) The Criminal Procedure Code, 1973 puts no limitation,
restriction or condition on exercise of such
power and an appellate court on the evidence before it may reach
its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, “substantial and compelling
reasons”, “good and sufficient grounds”,
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“very strong circumstances”, “distorted conclusions”, “glaring
mistakes”, etc. are not intended to curtail
extensive powers of an appellate court in an appeal against
acquittal. Such phraseologies are more in the nature of “flourishes
of language” to emphasise the reluctance of an appellate court to
interfere with acquittal than to curtail the power of the court to
review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of
acquittal, there is double presumption
in favour of the accused. Firstly, the presumption of innocence is
available to him under the fundamental
principle of criminal jurisprudence that every person shall be
presumed to be innocent unless he is proved guilty by a competent
court of law. Secondly, the accused having secured his acquittal, the
presumption of his innocence is further reinforced, reaffirmed and
strengthened by the Trial Court.
(5) If two reasonable conclusions are possible on the basis of the
evidence on record, the appellate court should not disturb the
finding of acquittal recorded by the Trial Court.”
77. Thus, upon careful consideration of entire
factual aspect and well-established legal principles, and after
having examined and analyzed the entire evidence on record,
it is gathered that the evidence of witnesses is infested with
some glaring deficiencies shaking the very foundation of the
case. We are also conscious of the accused persons
(respondent nos. 2 to 5) having undergone the ordeal of trial
since the year 1992 with a sword hanging before them even
till today. In view of the settled law, even if we accept that
there is a stark possibility of two reasonable conclusions
based on the evidence on record, this court does not find it
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either proper or reasonable to disturb the finding of acquittal
recorded by the Trial Court.
78. In view of the position emerging out from the
foregoing reasons and upon considering the totality of facts
and circumstances, including the consideration of the lapse
of 35 years since the date of occurrence alongwith the law
laid down with regard to appeals against acquittal, we are
constrained to hold that the impugned judgment and order of
acquittal dated 06.04.2023 passed by learned Additional District
and Sessions Judge-XXII, Motihari, East Champaran in Sessions
Trial No. 116 of 1992 arising out of Ghorasahan P.S. Case No.
124 of 1991 warrants no interference.
79.Accordingly, the present appeal stands
dismissed.
80. However, before parting with the judgment, we
feel compelled to observe that the learned Trial Courts must
realize the significance of compliance of mandatory
procedural safeguards and the requirements of law and that
non-compliance of the same can have far-reaching
consequences, including facing rigours of protracted trials,
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rendering them an ordeal for the parties to the litigation. The
Courts must be conscious and sensitive towards these aspects
to ensure a fair trial and thereby uphold the rights guaranteed
to citizens by the Constitution of India.
(Soni Shrivastava, J)
Rajeev Ranjan Prasad, J:
(Rajeev Ranjan Prasad, J)
Harsh/-
AFR/NAFR AFR
CAV DATE 23.04.2026
Uploading Date 19.06.2026
Transmission Date 19.06.2026
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