IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL APPEAL (SJ) No.662 of 2010

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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

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Appearance :

For the Appellant/s: Mrs. Rishika Jha, Amicus curiae.

For the Respondent/s: Mr.S.N.Pd., APP.

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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

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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.

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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

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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

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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.

mantreshwar/-

(Purnendu Singh, J)

AFR/NAFR NAFR

CAV DATE 10.03.2026

Uploading Date 24.03.2026

Transmission Date 24.03.2026