Patna High Court
Hari KumarversusThe State Of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- PRABHAT KUMAR SINGH
Holding
The conviction was set aside and the appellant was acquitted as the prosecution failed to prove guilt beyond reasonable doubt.
Summary
Hari Kumar appealed his conviction under IPC Sections 395 (dacoity) and 412 (robbery) imposed by the Sitamarhi Sessions Court. The prosecution’s case relied mainly on the confessional statements of co‑accused made before police, the informant’s testimony, and seized articles that were not linked to the appellant. The appellant was never identified in a parade nor by the informant, and no independent witness testified to his participation or possession of the stolen items. The High Court held that such police‑recorded confessions are inadmissible under Sections 25 and 26 of the Evidence Act and that the prosecution failed to prove guilt beyond reasonable doubt. Consequently, the conviction and sentence were set aside, and the appellant was acquitted.
Issues considered
- Whether a confession made to police by a co‑accused is admissible as substantive evidence under Sections 25 and 26 of the Evidence Act.
- Whether the absence of identification parade or positive identification by the informant defeats the prosecution’s case.
- Whether the lack of seized articles in the appellant’s possession and absence of seizure witnesses undermines proof of the offences.
- Whether conviction can be sustained on the basis of circumstantial evidence alone in the absence of direct evidence.
Legislation cited
- Indian Evidence Act, 1872 — s. 25, 26
- Indian Penal Code — s. 34, 395, 412
Subjects
- confession
- evidence
- IPC
- robbery
- dacoity
- identification parade
- acquittal
- high court
- appeal
- sections 25 and 26 Evidence Act
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.1 of 2016
Arising Out of PS. Case No.-75 Year-2014 Thana- PUPRI District- Sitamarhi
======================================================
Hari Kumar Son of Baleshwar Raut Resident of Village- Mannan Khedu,
Police Station- Jale, District- Darbhanga
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant : Ms. Madhubala Verma, Advocate
For the State : Mr. Z. Hoda, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE PRABHAT KUMAR SINGH
ORAL ORDER
6 31-03-2026 Heard learned counsel appearing for the appellant and
learned Additional Public Prosecutors appearing for the State.
2. This appeal has been filed challenging the
judgment of conviction dated 28.11.2015 and order of sentence
dated 31.11.2015 passed by the learned A.D.J.-III, Sitamarhi in
Sessions Trial No. 507 of 2014/164 of 2014 arising out of Pupri
P.S. Case No. 75 of 2014 whereby and whereunder this
appellant has been convicted for committing offences under
Sections 395 and 412 of the Indian Penal Code and has been
sentenced to undergo rigorous imprisonment for 7 years and to
pay a fine of Rs. 10,000/- for committing offence under Section
395 of the Indian Penal Code and in case of default of payment
of fine, to further undergo simple imprisonment for 3 months
and rigorous imprisonment for 7 years and to pay a fine of Rs.
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10,000/- for committing offence under Section 412 of the Indian
Penal Code and in case of default of payment of fine, to further
undergo simple imprisonment for 3 months. Both sentences
have been directed to run concurrently.
3. The prosecution case, in brief, is that on 04.04.2014
at about 11 PM, informant, namely Jiwachh Mahto, was
travelling from Keshavpur to Pupri on his motorcycle bearing
Registration No. BR-7B-8504 and reached near Singhiahi
bridge, one person signaled him to stop and when the informant
stopped, four other persons, who were hiding, came out and
started assaulting him. It is further alleged that one of the
accused person inflicted knife on the left side of his chest as a
result of which, he fell down and thereafter, the accused persons
tied his hands and legs, snatched his motorcycle, a mobile phone
and Rs. 500 cash and fled away.
4. In this case, on the basis of the Fardbeyan of the
informant, Pupri P.S. Case No. 75 of 2014 was registered for the
offence punishable under Section 394 of the Indian Penal Code
against four unknown miscreants and after completion of the
investigating, charge-sheet was submitted under Sections 395
and 412 of the Indian Penal Code against five accused persons
and thereafter, cognizance was taken and since one of the five
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accused persons was juvenile, case was committed to the
learned Sessions Court with respect to four accused persons
only. Accordingly, charges were framed under Sections 395, 412
and 34 of the Indian Penal Code against all four accused
persons.
5. In this case, in order to bring home guilt of the
accused person, the prosecution has examined altogether seven
witnesses. P.W. 1, namely Ravindra Kumar Choudhary and
P.W., namely Dilip Sah, are independent witnesses. P.W. 3,
namely Jibachh Mahto, is informant of this case. P.W. 4, namely
Yogendra Pd., is the Investigating Officer; P.W. 5, namely
Santosh Mandal, is Chawkidar; P.W. 6, namely Vishal Anand is
a police official and P.W. 7, namely Dr. Chandramoleshwar
Singh, is the doctor. The prosecution has also adduced
documentary evidences, which are marked as:-
Exhibit 1 Signature of informant on the Fardbeyan
Exhibit 1/1 Signature of Pappu Choudhary on the Fardbeyan
Exhibit 1/2 Signature of Nirmala Devi on the Fardbeyan
Exhibit 2 Formal F.I.R.
Exhibit 3 Fardbeyan
Exhibit 3/1 Endorsement on the Fardbeyan
Exhibit 4 Confessional statement of accused Tipu Sultan
Exhibit 4/1 Confessional statement of accused Anuj Kumar
Exhibit 5 Seizure list of looted mobile recovered from accused
Tipu Sultan
Exhibit 5/1 Seizure list of mobile recovered from accused Riyaz
Ahmad
Exhibit 5/2 Seizure list of mobile recovered from accused Anuj
Kumar
Exhibit 5/3 Seizure list of looted motorcycle recovered from the
house of accused Anuj Kumar
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Exhibit 5/4 Seizure list of mobile recovered from accused Babloo
Kumar
Exhibit 5/5 Seizure list of mobile recovered from accused Hari
Kumar
Exhibit 6 C.D.R. of Mobile No. 9709456500
Exhibit 6/1 C.D.R. of IMEI No. 911229551738950
Exhibit 7 C.D.R. of Mobile Nos. 8521895202 and 9771315312
Exhibit 8 Page No. 154 of the injury register
6. Beside the aforesaid, the prosecution has also
proved some material exhibits in support of its case i.e. Material
Exhibits I to I/4 are mobile sets and Material Exhibit II is the
motorcycle.
7. On the other hand, the defence has also examined
one witness i.e. D.W. 1, namely Jitendra Jha, who is a formal
witness and proved the Memo of Arrest of Hari Kumar
(appellant) and Babloo Kumar and the same are marked as
Exhibit A and A/1.
8. After hearing the parties, the learned trial court
convicted this appellant and sentenced him, as indicated in the
opening paragraph of this order.
9. Learned counsel appearing for the appellant assails
the order of conviction and sentence on multiple grounds. She
contends that in this case, name of appellant surfaced only on
the basis of confessional statement of co-accused Tipu Sultan
and co-accused Anuj Kumar and heavily relying on these
confessional statements, the learned trial court has convicted
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this appellant, however, from bare perusal of Sections 25 and 26
of the Evidence Act, it would be apparent that confession made
before the police is inadmissible and the same cannot be viewed
as substantive evidence and as such, no conviction can be
awarded on the basis of confessional statement of co-accused
persons. In this case, the appellant was not put on test
identification parade and he was also not identified by the
informant during trial. In trial, the informant has only identified
co-accused Tipu Sultan in the dock. The seized articles were not
produced and ownership of the articles was not verified and
confirmed. It is further contended that in this case, except
informant/P.W. 3, there is no eye witness to the occurrence. P.W.
1 and P.W. 2 are staff working in the shop of the informant and
are hear say and interested witnesses. P.W. 4, P.W. 5, P.W. 6 and
P.W. 7 are official witnesses. The prosecution has also failed to
examine independent witnesses of seizure, which makes the
recovery doubtful. Moreover, medical evidence does not support
the prosecution case inasmuch as, doctor has found the injury
sustained by the informant simple in nature. Thus, the
prosecution has failed to prove the case beyond reasonable
doubts and thus, the trial court has wrongfully convicted the
appellants ignoring material contradictions and hence, the
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appellant is fit to be acquitted.
10. On the other hand, learned Additional Public
Prosecutor for the State has submitted that there is no need of
any interference in this appeal since the prosecution witnesses
have supported the corroborated the prosecution story and there
is no reason to differ with the findings of the learned trial court
and the judgement of conviction and order of sentence are
justified and legal.
11. From going through the rival submissions,
evidences and upon perusal of the records, this Court finds that
the impugned order of conviction and sentence suffers from
material infirmity. The conviction of the present appellant relies
heavily upon confession of co-accused persons which was made
before the police, which is an extra-judicial confession and is an
inadmissible evidence. In this case, the appellant is not known
to the informant and neither he was put on test identification
parade nor he was identified by the informant at the dock during
trial. Moreover, none of the allegedly stolen articles were
recovered from possession of this appellant nor any seizure
witnesses were examined to support the alleged recovery of
stolen articles. Save and except informant/P.W. 3, there is no
independent witness to the occurrence.
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12. Thus, in view of the facts and circumstances of the
case, as discussed above, it is evident that the prosecution has
failed to prove the guilt of this appellant beyond reasonable
doubt and thus, the appellant is entitled to be given the benefit
of doubt.
13. In that view of the matter, the judgment of
conviction dated 28.11.2015 and order of sentence dated
30.11.2015 passed by the learned A.D.J.-III, Sitamarhi in
Sessions Trial No. 507 of 2014/164 of 2014 arising out of Pupri
P.S. Case No. 75 of 2014 are hereby set aside with respect to
this appellant only.
14. Appellant, above named, is acquitted of all the
charges and is discharged from the liability of the bail bond in
connection with this case.
15. Accordingly, this appeal stands allowed.
(Prabhat Kumar Singh, J)
shashank/-
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