Patna High Court
SHAMBHU RAM and ANRversusSTATE OF BIHAR
- Decided
- Disposal
- ALLOWED
- Bench
- PURNENDU SINGH
Holding
The conviction under Sections 364 and 120B IPC is unsustainable and is set aside, resulting in the acquittal of the appellants.
Summary
Shambhu Ram and his wife Sunita Devi were convicted by the Sessions Court for kidnapping under IPC §364 and criminal conspiracy under §120B, based on the allegation that they abducted Gorakh Vishwakarma on 3 April 2007 and took him to Mumbai. The prosecution’s case relied solely on the testimony of six interested witnesses—family members of the victim—who claimed the victim left with the accused, and on seized articles without any test‑identification parade or forensic evidence. The High Court examined the credibility of the interested witnesses, noted contradictions and lack of independent corroboration, and highlighted serious investigative deficiencies. Applying established principles on the reliability of interested witnesses and the requirements for a chain of circumstantial evidence, the Court held that the evidence was insufficient to prove the offence beyond reasonable doubt. Consequently, the appeal was allowed, the conviction set aside and the appellants acquitted.
Issues considered
- Whether the testimony of interested witnesses without independent corroboration can sustain a conviction under IPC §364.
- Whether the circumstantial evidence presented establishes the guilt of the accused beyond reasonable doubt.
- Whether investigative lapses (absence of test‑identification parade, lack of forensic evidence) defeat the prosecution’s case.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 161, 313
- Indian Penal Code — s. 120B, 364
Subjects
- kidnapping
- abduction
- criminal conspiracy
- interested witness
- circumstantial evidence
- acquittal
- burden of proof
- Indian Penal Code
- Criminal Procedure Code
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.662 of 2010
======================================================
1. Shambhu Ram, Son of Kushum Ram, resident of village – Jagdishpur, P.S.
- Naubatpur, District – Patna.
2. Sunita Devi, W/o Shambhu Ram, resident of village – Jagdishpur, P.S. -
Naubatpur, District – Patna.
... ... Appellant/s
Versus
State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mrs. Rishika Jha, Amicus curiae.
For the Respondent/s : Mr.S.N.Pd., APP.
======================================================
CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
CAV JUDGMENT
Date : 24-03-2026
Learned counsel appearing for the
appellants/accused failed to appear when the matter was taken
up for final hearing. Therefore, this Court appointed Mrs.
Rishikha Jha, learned Advocate, present in Court, as Amicus
Curiae to assist this Court.
2. The criminal appeal has been preferred against the
judgment and conviction dated 13.04.2010 and 16.04.2010
passed in Sessions Trial No. 1542/2008 and 1214/2009 by Addl.
Sessions Judge-I, Danapur, Patna, whereby the learned trial
court convicted the appellants under Section 364 of the Indian
Penal Code and sentenced them to undergo 10 years R.I. and to
pay a fine of Rs. 2,000 each, and in default of payment of the
fine, to further undergo R.I. for six months; and further
Patna High Court CR. APP (SJ) No.662 of 2010 dt.24-03-2026
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sentenced to undergo 5 years R.I. under Section 120(B) of the
Indian Penal Code and fine of Rs. 1,000 each, and in default of
payment of fine, to further undergo R.I. for three months.
3. The prosecution case, in brief, is that the informant
Vijay Mistri and his brother Gorakh Vishwakarma (victim) were
working as carpenters at village Jagdishpur-Tola. It is alleged
that on 07.01.2007, an altercation had taken place between the
victim and accused Shambhu Ram regarding the alleged illicit
relationship of the victim with the wife of the accused, which
was later pacified by the villagers. According to the prosecution,
on 03.04.2007 at about 11:00 A.M. the accused persons came to
the house of the informant and asked the victim to accompany
them to Mumbai for carrying luggage of their family members.
The victim allegedly left the house with the accused persons
after taking Rs. 9,000/- from his wife, but thereafter he did not
return nor contact his family members. It is further alleged that
when the victim did not return till 07.04.2007, the informant and
his family members started searching for him but could not find
any clue about his whereabouts. The matter was reported to
Naubatpur Police Station, but no effective action was taken.
Subsequently, the informant filed a complaint case before the
learned ACJM Danapur, which led to registration of the FIR
against the accused persons bearing Naubatpur P.S. Case No.
Patna High Court CR. APP (SJ) No.662 of 2010 dt.24-03-2026
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85/2007 under sections 364/201/120B of the IPC.
4. After investigation, charge-sheet was submitted
under Sections 364, 201 and 120(B) of the IPC, and upon trial in
Sessions Trial No. 1542/2008 / 1214/2009, the learned trial
court convicted the appellants under section 364 of the IPC vide
judgment dated 13.04.2010 and order of sentence dated
16.04.2010.
ARGUMENT ON BEHALF OF THE APPELLANTS
5. Mrs. Rishika Jha, learned Advocate appearing as
Amicus curiae, submitted that the impugned judgment of
conviction dated 13.04.2010 and order of sentence dated
16.04.2010 passed by the learned Addl. Sessions Judge-I, Danapur,
Patna in Sessions Trial No. 1542/2008 / 1214/2009 is illegal and
unsustainable in the eye of law, as the same has been passed
without proper appreciation of the evidence on record. It was
contended that the entire prosecution case is based on suspicion
and there is no direct evidence to prove that the victim Gorakh
Vishwakarma was abducted by the appellants . Learned counsel
further submitted that P.W.-1 to P.W.-6 are close relatives of the
victim and thus interested witnesses, yet the learned trial court
has relied upon their testimonies without any independent
corroboration. It was also argued that the matter was initially
reported to the police on 07.04.2007 merely as a missing case
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and a Sanha entry was made, which creates doubt regarding the
prosecution story. He further submitted that there are material
contradictions and improvements in the statements of the
prosecution witnesses vis-à-vis their statements recorded under
Section 161 Cr.P.C., thereby affecting their credibility. Learned
counsel also contended that although the Investigating Officer
stated that accused Shambhu Ram was arrested on 12.06.2007,
no confessional statement was recorded at that time and the
alleged confession relied upon by the prosecution is doubtful. It
was further argued that the prosecution has failed to establish by
reliable evidence that the victim had gone with the appellants on
03.04.2007, and the defence evidence suggests that accused
Shambhu Ram had left for Bombay alone with his family
members on the same night.
6. Learned counsel further submitted that the
investigation is doubtful, as the claim of the Investigating
Officer regarding his visit to Bombay is not supported by any
documentary evidence. It was also contended that although a
bag was allegedly recovered, no Test Identification Parade of the
seized articles was conducted and the bag was directly shown to
P.W.-5 and P.W.-6 for identification, which is contrary to law.
On these grounds, it was submitted that the prosecution has
failed to prove the charges beyond reasonable doubts and the
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impugned judgment and order of sentence are liable to be set
aside.
ARGUMENT ON BEHALF OF THE STATE
7. Per Contra, learned APP appearing for the State while
opposing the appeal submitted that the learned District court,
after considering all the evidences on record and exhibits
submitted on behalf of the parties during the course of trial, has
rightly convicted the appellants for said offences as the offences
alleged against the appellants appears to be serious in nature and
also constitutes cognizable offence.
ANALYSIS AND CONCLUSION
8. Heard the parties.
9. I have perused the lower court records and
proceedings and also taken note of the arguments canvassed by
learned counsel appearing on behalf of the parties.
10. The learned trial court, on the basis of materials as
collected during the course of investigation, passed the
Judgment and Conviction dated 13.04.2010 and 16.04.2010 for
the offences under Sections 364 and 120B of the IPC.
11. During the trial, the prosecution has examined
altogether seven witnesses, namely:
P.W.-1 Sohrai Mistri (Fufa of the victim),
P.W.-2 Sanjay Mistri (cousin of the victim),
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P.W.-3 Santosh Mistri (brother of the informant),
P.W.-4 Harendra Mistri (brother of the informant),
P.W.-5 Neelam Devi (wife of the victim),
P.W.-6 Vijay Mistri (informant), and
P.W.-7 Ram Chandra Ram (Investigating Officer).
12. The prosecution has also relied upon following
documents exhibited during the course of trial:-
(i) Signature of Vijay Mistry (Exhibit-1),
(ii) Complaint petition (Exhibit-2),
(iii) FIR(Exhibit-3),
(iv) Statement of Shambhu Ram (Exhibit-4).
(v) Seizure List (Exhibit-5)
(vi) Sweater, Shawl, Chadar, Matress, Pant, T-shirt
and Bag (Exhibit-I to VII)
13. On the basis of materials surfaced during the
trial, the appellants/accused was examined under Section 313 of
the Cr.PC by putting incriminating circumstances/evidences
surfaced against him, which he denied and shows his complete
innocence.
14. It would be apposite to discuss the
oral/documentary evidences as available on record to re-
appreciate the evidences for just and proper disposal of the
present appeal.
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15. From the perusal of records the statements of
the prosecution witnesses are as under:
(i) P.W.1- Sohrai Mistri has deposed that on
03.04.2007 at about 11:00 A.M., while he was working at the
shop of Akhilesh Mistri, he saw the accused Shambhu Ram,
Sunita Devi and other co-accused persons talking with Gorakh
Vishwakarma. After some time, Gorakh went to his house and
later came out with a bag and left along with the accused
persons, stating that he would return soon. However, he did not
return thereafter. During cross-examination, no material
contradiction could be elicited by the defence on the fact that
the accused persons had come there and taken Gorakh along
with them.
(ii) P.W.2- Sanjay Mistri has also supported the
prosecution case and stated that on the same day and time the
accused persons came to the house/shop of Gorakh, called him
outside and talked with him. Thereafter, Gorakh went inside his
house, came back with a bag and went away with the accused
persons saying that he would return within a few hours, but he
did not return. The defence cross-examined him at length but
failed to shake his testimony regarding the fact that Gorakh
went away with the accused persons.
(iii) P.W.3- Santosh Mistri, the brother of the victim,
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has deposed that the accused persons came to their shop and
talked with Gorakh, after which Gorakh went inside the house,
changed his clothes, took a bag and left with them. He further
stated that Gorakh did not return thereafter and efforts were
made to search him. During cross-examination, he reiterated
that he had also stated the same facts before the police and no
contradiction could be brought out by the defence.
(iv) P.W.4- Harendra Mistri has corroborated the
version of the earlier witnesses and stated that on the date of
occurrence the accused persons came to the shop and talked
with Gorakh, after which Gorakh went home, changed his
clothes, took a bag and left with them saying that he would
return in two or three days, but he never came back. The
defence could not discredit his testimony in cross-examination
on this material point.
(v) P.W.5- Neelam Devi, the wife of Gorakh
Vishwakarma, has also supported the prosecution case and
stated that the accused persons came to the shop and called her
husband, after which he came inside the house, changed his
clothes, took a bag and Rs. 9,000/- in cash and went away with
them. She stated that her husband did not return thereafter and
despite search he could not be traced. Her testimony remained
consistent and no material contradiction could be elicited during
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cross-examination.
(vi) P.W.6- Vijay Mistri, the informant and brother of
the victim, has deposed that he saw the accused persons come to
the shop and talk with Gorakh, after which Gorakh went inside
his house, took a red coloured bag and went away with them
stating that he would return within three to four days. When he
did not return, the witness searched for him and even went to
Bombay where the landlord identified the photograph of Gorakh
and stated that he had come there along with the accused
persons. His testimony also remained consistent during cross-
examination and supports the prosecution case that Gorakh was
last seen going with the accused persons.
16. It would be appropriate to reproduce the
provisions of Sections 364 and 120B of the IPC for the sake of
convenience and better understanding of the facts, which are as
under:-
“364. Kidnapping or abducting in order to
murder.—
Whoever kidnaps or abducts any person in
order that such person may be murdered or
may be so disposed of as to be put in danger
of being murdered, shall be punished with
imprisonment for life or rigorous
imprisonment for a term which may extend to
ten years, and shall also be liable to fine.
Illustrations(a) A kidnaps Z from India,
intending or knowing it to be likely that Z
may be sacrificed to an idol. A has committed
the offence defined in this section.(b)A
forcibly carries or entices B away from his
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home in order that B may be murdered. A has
committed the offence defined in this section.
120B. Punishment of criminal conspiracy.
(1) Whoever is a party to a criminal
conspiracy to commit an offence punishable
with death, imprisonment for life or rigorous
imprisonment for a term of two years or
upwards, shall, where no express provision is
made in this Code for the punishment of such
a conspiracy, be punished in the same
manner as if he had abetted such offence.
(2) Whoever is a party to a criminal
conspiracy other than a criminal conspiracy
to commit an offence punishable as aforesaid
shall be punished with imprisonment of
either description for a term not exceeding
six months, or with fine or with both.”
17. The record reveals that P.W.-1 to P.W.-6 are
closely related to the victim and, therefore, fall within the
category of interested witnesses. Their testimonies show that
they are either family members or close relatives of the victim
and thus have a direct interest in the outcome of the case. It is a
settled principle of law that though the evidence of an interested
witness cannot be discarded solely on that ground, the same
requires careful scrutiny and cautious evaluation before being
relied upon. In the present case, the conviction of the appellants
has been primarily based upon the testimonies of these
interested witnesses without adequate independent
corroboration from any neutral or independent witness, which
renders the prosecution case doubtful. Therefore, the evidentiary
value of such testimonies requires strict scrutiny while assessing
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the guilt of the accused/appellants.
18. In the instant case, it is evident that all the
prosecution witnesses are interested witnesses, having direct or
indirect stakes in the outcome of the matter. Their testimonies,
therefore, cannot be accepted at face value without careful
scrutiny. The courts have consistently held that interested
witnesses are prone to exaggeration, omission, or distortion of
facts to favor their own position. Consequently, their evidence
cannot be deemed wholly reliable or sufficient on its own to
establish the charges. It is imperative that such testimonies be
corroborated by independent, credible, and unimpeachable
evidence before any adverse inference or conviction is drawn. In
this regard, reference can be drawn from the judgment passed
by the Apex Court in para nos. 32 and 33 in the case of Nand
Lal v. State of Chhattisgarh, (2023) 10 SCC 470, which are
reproduced hereinafter:
“32. Undisputedly, the present case rests on
the evidence of interested witnesses. No
doubt that two of them are injured witnesses.
This Court, in Vadivelu Thevar v. State of
Madras [Vadivelu Thevar v. State of Madras,
1957 SCC OnLine SC 13 : 1957 SCR 981 :
AIR 1957 SC 614] , has observed thus : (AIR
p. 619, paras 11-12)
“11. … Hence, in our opinion, it is a sound
and well-established rule of law that the
court is concerned with the quality and not
with the quantity of the evidence necessary
for proving or disproving a fact. Generally
speaking, oral testimony in this context may
be classified into three categories, namely:
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(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly
unreliable.
12. In the first category of proof, the court
should have no difficulty in coming to its
conclusion either way — it may convict or
may acquit on the testimony of a single
witness, if it is found to be above reproach or
suspicion of interestedness, incompetence or
subornation. In the second category, the
court equally has no difficulty in coming to
its conclusion. It is in the third category of
cases, that the court has to be circumspect
and has to look for corroboration in material
particulars by reliable testimony, direct or
circumstantial.”
33. It could thus be seen that in the category
of “wholly reliable” witness, there is no
difficulty for the prosecution to press for
conviction on the basis of the testimony of
such a witness. In case of “wholly
unreliable” witness, again, there is no
difficulty, inasmuch as no conviction could be
made on the basis of oral testimony provided
by a “wholly unreliable” witness. The real
difficulty comes in case of the third category
of evidence which is partly reliable and
partly unreliable. In such cases, the court is
required to be circumspect and separate the
chaff from the grain, and seek further
corroboration from reliable testimony, direct
or circumstantial.”
19. What emerges from the settled principles of law
is that the evidence of interested witnesses must be examined
with caution but cannot be discarded merely on the ground of
relationship or interest. Where such witnesses are found to be
neither wholly trustworthy nor entirely unreliable, the Court
must carefully scrutinize their testimony to determine its
credibility and probative value. If the testimony of an interested
witness is clear, cogent, consistent, and inspires confidence, it
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can form the basis for conviction, even in the absence of
independent corroboration. However, where the evidence is
riddled with contradictions, improvements, or material gaps, its
reliability may be doubtful, and conviction based solely on such
testimony would be unsafe. The guiding principle remains that
the Court must weigh the testimony of interested witnesses
pragmatically and cautiously, ensuring that the conviction is
founded on credible and trustworthy evidence.
20. Further, it is a settled principle of criminal law
that a conviction can be sustained solely on circumstantial
evidence, provided the circumstances are fully proved,
consistent, and conclusive in pointing towards the guilt of the
accused. The Hon’ble Supreme Court has repeatedly held that in
cases based on circumstantial evidence, the chain of
incriminating circumstances must be complete and leave no
room for any reasonable hypothesis except the guilt of the
accused. Each circumstance must be clearly established and
linked so as to form a coherent and unbroken chain, which
excludes the possibility of innocence. In such cases, conviction
can only be recorded when the proven facts irresistibly lead to
the conclusion that the accused, and no one else, committed the
offence. In this regard reference can be drawn from the
judgment passed by the Apex Court in case of Akhtar Ali alias
Patna High Court CR. APP (SJ) No.662 of 2010 dt.24-03-2026
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Ali Akhtar alias Shamim alias Raja Ustad vs State of
Uttarakhand reported in 2025 SCC OnLine SC 1949 which is
reproduced hereianfter:
“10. It is a well-established principle of
criminal jurisprudence that a conviction may
be based purely on circumstantial evidence,
provided that such evidence is deemed
credible and trustworthy. In cases based
purely on circumstantial evidence, it is
imperative to ensure that the facts leading to
the conclusion of guilt are fully established
and that all the established facts point
irrefutably to the accused person's guilt. The
chain of incriminating circumstances must be
conclusive and should exclude any
hypothesis other than the guilt of the
accused. In other words, from the chain of
incriminating circumstances, no reasonable
doubt can be entertained about the accused
person's innocence, demonstrating that it
was the accused and none other who
committed the offence. The law with regard
to conviction based on circumstantial
evidence has been crystallised by this Court
in the case of Sharad Birdhichand Sharda v.
State of Maharashtra 30, wherein the
following golden principles, governing cases
based on circumstantial evidence, were laid
down:
“153. A close analysis of this decision
would show that the following conditions
must be fulfilled before a case against an
accused can be said to be fully established:
(1) the circumstances from which the
conclusion of guilt is to be drawn
should be fully established.
It may be noted here that this
Court indicated that the
circumstances concerned “must or
should” and not “may be”
established. There is not only a
grammatical but a legal distinction
between “may be proved” and “must
be or should be proved” as was held
by this Court in Shivaji Sahabrao
Bobade v. State of Maharashtra,
[(1973) 2 SCC 793] where the
observations were made: [SCC para
Patna High Court CR. APP (SJ) No.662 of 2010 dt.24-03-2026
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19, p. 807]
“Certainly, it is a primary
principle that the accused must be
and not merely may be guilty before a
court can convict and the mental
distance between ‘may be’ and ‘must
be’ is long and divides vague
conjectures from sure conclusions.”
(2) the facts so established should be
consistent only with the hypothesis
of the guilt of the accused, that is to
say, they should not be explainable
on any other hypothesis except that
the accused is guilty,
(3) the circumstances should be of a
conclusive nature and tendency,
(4) they should exclude every possible
hypothesis except the one to be
proved, and
(5) there must be a chain of evidence so
complete as not to leave any
reasonable ground for the
conclusion consistent with the
innocence of the accused and must
show that in all human probability
the act must have been done by the
accused.
(emphasis supplied)
11. Having noted the principles governing a
case based purely on circumstantial
evidence, we now proceed to discuss the
evidence led by the prosecution in order to
bring home the charges against the accused-
appellants. The prosecution portrayed the
following circumstance in its endeavour to
establish the charge of murder against the
accused-appellants:—
(i) “Motive”, i.e., to say that the accused-
appellants harboured an intention to
satisfy their lust upon the young girl,
Ms. K, and that this depraved motive
formed the basis of the brutal assault
which ultimately led to her death.
(ii) “Last Seen Theory”, i.e., to say that
the accused-appellants were seen in
close proximity to the victim girl,
shortly before the time when she went
missing, and that in the absence of
any plausible explanation from the
accused-appellants, the burden lies
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upon them to account for the fate of
the victim girl. The prosecution,
therefore, relies on this circumstance
as an important link in the chain of
events connecting the accused-
appellants to the crime.
(iii) Scientific Evidence (including DNA
and FSL Reports), i.e., to say that the
scientific analysis of samples
collected from the body and clothes of
the victim girl established a match
with the DNA profile of the accused-
appellant No. 1-Akhtar Ali, thereby
providing direct forensic
corroboration of his involvement in
the offence. The prosecution argues
that such evidence, being objective
and scientific in nature, lends strong
support to its case and completes the
chain of circumstances.”
21. Upon a careful consideration of the entire
evidence on record and law laid down by the Apex Court as
referred hereianbove, this Court finds that the prosecution case
rests solely on circumstantial evidence, primarily the “last seen”
theory as deposed by P.W.-1 to P.W.-6, who are all closely
related to the victim and thus interested witnesses. Although
their testimonies are broadly consistent to the effect that the
victim was last seen leaving with the accused persons on
03.04.2007, they cannot be said to be eye witnesses and in
absence of any independent corroboration from neutral
witnesses renders such evidence unsafe to rely upon as the sole
basis of conviction. Moreover, the prosecution has failed to
establish the proximity of time between the alleged last seen
occurrence and the disappearance of the victim so as to form a
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conclusive link. The alleged motive arising out of prior dispute
has also not been proved by cogent evidence. Further, the initial
information given to the police was only in the nature of a
missing report, and the delay in instituting the formal complaint
remains unexplained, thereby casting doubt on the prosecution
story.
22. It also appears that the investigation suffers from
serious infirmities, including the doubtful recovery of articles
without conducting any Test Identification Parade and the
unsubstantiated claim of the Investigating Officer regarding his
visit to Mumbai. No reliable evidence has been brought on
record to establish the fate of the victim, and there is neither
recovery of the dead body nor any scientific or forensic
evidence connecting the accused with the alleged offence. In
such circumstances, the chain of incriminating circumstances is
clearly incomplete and does not unerringly point towards the
guilt of the appellants, leaving room for reasonable doubt. It is a
settled principle of criminal law that suspicion, however strong,
cannot substitute proof beyond reasonable doubt. Accordingly,
this Court is of the considered opinion that the conviction
recorded by the learned trial court is unsustainable in law.
23. Accordingly, the present appeal is allowed.
24. The impugned judgment of conviction dated
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13.04.2010 and order of sentence dated 16.04.2010, passed by
the learned Addl. Sessions Judge-I, Danapur, Patna is hereby set
aside. Consequently, the above-named appellants/accused are
acquitted from all the charges levelled against them. Since the
appellants are on bail, as such, they are discharged from the
liability of their bail bonds. The fine deposited by the appellants,
if any, shall be refunded to them.
25. The Patna High Court, Legal Services Committee
is, hereby, directed to pay a sum of Rs. 5,000/- (Rupees Five
Thousand) to Mrs. Rishika Jha, learned Amicus Curiae, as
consolidated fee, for rendering her valuable professional service
for disposal of the present appeal.
26. Office is directed to send back the lower court
records along with a copy of the judgment to the learned District
Court forthwith.
(Purnendu Singh, J)
mantreshwar/-
AFR/NAFR NAFR
CAV DATE 10.03.2026
Uploading Date 24.03.2026
Transmission Date 24.03.2026
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