Bibi Shavrin vs The State Of Bihar & Anr.

(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)

Date : 27-08-2026

Heard learned counsel for the appellant and learned Additional Public Prosecutor for the State.

The present criminal appeal arises out of the judgment of acquittal dated 14.11.2019 (hereinafter referred to as the ‘impugned judgment’) passed by learned Additional Sessions Judge-IV, Bhagalpur (hereinafter referred to as the ‘learned trial court’) in Sessions Trial No. 17 of 2017 arising out of Mojahidpur P.S. Case No. 24 of 2016 whereby and whereunder the respondent no. 2 has been acquitted of the charges punishable under Sections 364A and 365 of the Indian Penal Code (in short ‘IPC’).

The prosecution story is based on the written application of the informant (PW-2) wherein she has alleged that Pawan Kumar Shah (respondent no.2), S/o Shri Ganesh Sah was harassing her husband from before. It is further alleged that a case of bidai of her nanad Kamram Munira @ Munni Rani against her husband was also lodged when her nanad was earlier living with Pawan, she must have fled due to his harassment which is evident from Sanha No. 505 of 2015. It is further alleged that on 05.02.2016 at 4 o'clock Pawan had called informant's husband over phone and asked him to come to court and her husband had not returned home. It is further alleged in the application that her husband had also told the informant that he is going to Pawan and when the informant called at the mobile no. 9234692692 of the accused Pawan then the accused told her that he had thrown her husband after killing him. The informant has alleged that she is having the recording in the phone. The informant believes that his husband has been kidnapped or confined by Pawan because his husband did not give money to Pawan which he was demanding from before.

On the basis of the written application of the informant (PW-2), Mojahidpur P.S. Case No. 24 of 2016 dated 06.02.2016 was registered under Sections 364 and 365 IPC against Pawan Kumar (Respondent no. 2). After investigation, the police submitted a chargesheet bearing Chargesheet No. 68 of 2016 dated 24.09.2016 under Sections 364 and 365 IPC against respondent no. 2. Learned trial court vide order dated 28.11.2016 took cognizance of the offence punishable under Sections 364 and 365 IPC against respondent no. 2. Learned Magistrate vide order dated 15.12.2016 committed the records to the court of Sessions.

Charges were read over in Hindi and explained to respondent no. 2 to which he pleaded innocence and claimed to be tried. Accordingly, vide order dated 23.02.2021, charges were framed against him under Sections 364A and 365 IPC.

In course of trial, the prosecution examined as many as five witnesses and got exhibited various documentary evidence. The description of the prosecution witnesses and the list of documents exhibited on behalf of prosecution are provided here under for ready reference in a tabular form:-

Thereafter, the statement of the accused was recorded under Section 313 of the Code of Criminal Procedure (in short ‘CrPC’) in which he denied the allegations and pleaded innocence.

Learned trial court, after examining the oral as well as documentary evidences available on the record, found that the Investigating Officers of the case have done nothing in the name of investigation. The learned trial court has further found that the informant in her written report has alleged that the accused made calls to her husband's mobile from his mobile No. 9234692692, the informant also called on the said number to enquire about her husband and she also possesses a recording in which the accused has stated that he has killed her husband and thrown his body. The learned trial court has further found that it was incumbent upon a prudent Investigating Officer to collect the CDR and location chart of the mobiles of the accused and PW-3 and to collect the said conversation recording but the I.O. has neither collected the CDR, nor the location chart, nor the recording. The entire case diary is silent as to any effort made by the I.O. in this regard.

The learned trial court has also found that there is no substantive evidence to show that the motorcycle of PW-3 was found in an abandoned condition and there is no corroborative evidence that PW-3 had ever visited Kahalgaon P.S. from where he was taken to Mujahidpur P.S. by the I.O.

It has been further found by the learned trial court that the injury report on record belies the case of the prosecution of a 'daag' on the wrist of PW-3 and there is no evidence on record to show as to where PW-3 was kept during the alleged abduction and where the accused was during that period and at the time of recovery of PW-3.

The learned trial court has observed that the infirmities in the prosecution case cannot be ignored by simply saying that it is a case of faulty investigation and the prosecution is guilty of withholding the corroborative evidences.

Learned trial court further found that since PW-1, PW-2 and PW-3 are close relatives of each other and are highly interested witnesses being inimical to the accused, there is no corroboration to the testimonies of PW-1, PW-2 and PW-3 from any independent evidence either circumstantial or direct therefore it would not be safe to rely upon their testimonies. The learned trial court, thus, opined that in the peculiar facts and circumstances of the case, the possibility of false implication of the accused cannot be ruled out.

Learned trial court, after considering all the facts and circumstance of the case, came to the conclusion that the prosecution has not been able to prove it’s case beyond all reasonable doubts against respondent no. 2. Accordingly, learned trial court acquitted respondent no. 2 of the charge punishable under Sections 364A and 365 IPC.

Mr. N.A. Shamsi, learned counsel for the appellant, has assailed the impugned judgment. It is submitted that the learned trial court could not appreciate that the prosecution had reasonably proved it’s case against respondent no.2. Strong motive behind the alleged occurrence and the link between the criminological events constituting the occurrence have not been well appreciated by the learned trial court.

It is submitted that the learned trial court has not considered the fact that the accused (respondent no.2) and the victim were last seen together in company of each other, therefore, failure of the accused to satisfactorily account for missing of the victim (PW-3) would be a circumstance of any incriminating character. Reliance has been placed on the judgment of the Hon’ble Supreme Court in the case of Pohalya Motya Valvi vs. State of Maharashtra reported in AIR 1979 SC 1949.

Learned counsel submits that the principle of falsus in uno, falsus in omnibus would not be applicable in India. Even if major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained.

Learned counsel submits that the learned trial court has not considered the evidence of PW-3, who narrated the whole story in his deposition, the circumstances under which he was abducted by respondent no.2 have been proved by the prosecution.

Learned counsel submits that the learned trial court, while considering the evidences adduced against the respondent no.2, did not give due weightage to the prosecution evidence. rather, the court relied upon the defence version without applying judicious mind in the issues involved in this case.

On the other hand, learned Additional Public Prosecutor for the State, submits that it is a case of no evidence. The learned trial court has well appreciated the entire evidences available on the records. The findings and reasonings provided by the learned trial court are based on the evidences adduced by the prosecution.

Learned Additional Public Prosecutor further submits that the entire prosecution story has been found highly suspicious. The trial court has noticed that the prosecution case is mainly based on the depositions of PW-1, PW-2 and PW-3, who are close relatives and are inimical towards the accused.

It is further submitted that the trial court has found that there was no evidence on the record showing that any phone call was made to the victim (PW-3) by the respondent no.2. There is no witness to say that PW-3 was seen in the company of the respondent no.2 on the given date and time of the occurrence.

The learned trial court has further held that the deposition of PW-1 Md. Sarmad Nagina is based on the facts told to him by PW-2 and PW-3. This witness claimed that he had accompanied PW-2 to the police station to lodge the FIR, but there is no corroborative evidence that he had accompanied PW-2 to the police station. PW-2 has not deposed that PW-1 had accompanied her to the police station. Exhibit ‘3’ does not bear the signature of PW-1, which is the written application submitted to the police station.

Learned Additional Public Prosecutor submits that the learned trial court has further found that Bibi Shavrin (PW-2), who is the wife of the victim and the informant of this case, has not shown a natural conduct. She claimed in her written application that she is having the recording of the conversation in the mobile phone, despite this fact, PW-2 made a prayer to the SHO to search out her husband so that he may be found alive. If the accused had allegedly told her that her husband had been killed and thrown, then she ought to have made prayer to lodge a case of murder.

It is further submitted that PW-2 claimed that she had gone to the police station and told about the incident, she was advised to wait for the night, whereafter she came back and again went to the police station on the next day. This conduct of the wife (PW-2) cannot be taken as a natural conduct of the wife whose husband is missing and about whom it was told by the accused that he had been thrown after killing. The trial court has taken note of the subsequent conduct of the witness also.

Learned Additional Public Prosecutor submits that the investigating agency had not collected any CDR, location chart of the mobile phone of the accused and the alleged recording of the conversation between the accused and PW-2 as alleged by her in the written application and her deposition.

The learned trial court further found from the deposition of the victim (PW-3), who is the star witness of this case, that according to him, the accused and his friend had made phone calls to him, but this story had already been disbelieved because of the failure of the prosecution to produce the CDR, location chart of the mobile of the accused and the recording of conversation. PW-3 was not recovered by police from the custody of the accused. No one had been examined from the Kahalgaon Police Station to prove the fact that PW-3 had come in the police station and later on handed over to the Mujahidpur Police Station. No General Diary/Station Diary entry has been brought on the record to prove the arrival of PW-3 and the handing over of PW-3 by Kahalgaon Police to the Investigating Officer (PW-5).

Learned Additional Public Prosecutor further submits that there is no independent witness in this case to support that the victim (PW-3) was provided tea at the tea shop whereafter he became unconscious. Even the statement of the tea shop vendor had not been recorded by police. The victim (PW-3) claimed that he had gone to meet the accused-respondent no.2 by a motorcycle, but there is no substantive evidence about the recovery of the motorcycle of PW-3 in abandoned condition by the police of Police Station Adampur.

It is submitted that the learned trial court has noted that there was no medical evidence to prove the alleged ‘daags’ (marks of injury) on the hand of PW-3. There is an admitted enmity between the informant’s side and the accused. The accused had lodged cases against PW-3, including a writ petition in the High Court. There is no independent corroboration of the testimony of the witness (PW-3) from any other source, either direct or circumstantial.

It is submitted that the learned trial court has held that the depositions of PW-1, PW-2 and PW-3 would not make the statement of the victim (PW-3) wholly reliable, because it is trite law that a witness who is not wholly reliable cannot corroborate the testimony of another witness of the same category. In this regard, reliance has been placed on the judgment of the Hon’ble Supreme Court in the case of Muluwa Son of Binda and Ors. vs. State of Madhya Pradesh reported in AIR 1976 SC 989, wherein it has been held that evidence of an infirm witness does not become reliable merely because it has been corroborated by a number of witnesses of the same brand; for, evidence is to be weighed not counted.

It is submitted that the principles governing an appeal against acquittal are well settled. In the case of H.D. Sundara and Others Vs. State of Karnataka reported in (2023) 9 SCC 581, the Hon’ble Supreme Court has laid down the principles. This is not a fit case in which any interference is required.

We have heard learned counsel for the appellant and learned Additional Public Prosecutor for the State, as also perused the trial court records.

This Court finds that the prosecution case is based on the written application (Exhibit ‘3’) submitted by Bibi Shavrin (PW-2), who is the wife of the victim (PW-3), in the Mujahidpur Police Station. In her written information, the informant (PW-2) alleged that the accused Pawan Kumar Sah had been harassing her husband, he had lodged a case for bidai of her nanad Bibi Kamram Munira @ Munni Rani. Her nanad was living with Pawan Kumar (the respondent no.2) and because of the harassment given to her, she had left, for which Sanha No. 505 of 2015 has been lodged. She alleged that yesterday on 05.02.2016 at about 4:00 PM, phone call came from Pawan Kumar, who called her husband in Kachahari. Her husband had gone telling her that he was going to Pawan Kumar, but he had not returned. The informant further claimed that when she made a call to Pawan on his mobile number given in the written information, then he told her that he had killed her husband and thrown him, this is recorded in her mobile. The informant believed that because her husband had not given money to Pawan, therefore, he had been abducted, because in past he was asking for money.

The FIR was lodged on 06.02.2016 at 19:00 Hrs. i.e. after more than 24 hours of the time when the husband of the informant allegedly went to meet the accused-respondent no.2.

This Court finds that in course of trial, the informant (PW-2) tried to explain the delay by making a statement that she had told the occurrence to police in the Mujahidpur Police Station, but she was told to wait for the night, on the second day, she again went to the police station and submitted an application. The learned trial court has taken note of this conduct of PW-2, saying that she happened to be the wife of the victim (PW-3), she had recorded conversation in her phone informing her that her husband has been killed and thrown, still she did not go in search of her husband. She did not go to the house of the accused-respondent no.2. We understand that the learned trial court has rightly appreciated this aspect of the matter.

In this case, the star witness of the case is the victim (PW-3), who claimed that he had received the first phone of Pawan Kumar at 11:00 AM, which was not received by him. Thereafter, his friend Vikram’s phone came and he told him that today is the date, therefore he should come to court. Vikram again made a phone call to PW-3 at 1:30 PM and asked to come to the court as Pawan would compromise the matter. PW-3 did not go to court, but he made a phone call to Pawan around 3:30-4:00 PM and asked whether he had to come to court. PW-3 says that Pawan asked him to come to court. He went after telling all these things to his wife. Upon reaching court, he saw Pawan and his friend then he stopped the motorcycle there. There Pawan offered tea to drink, and just thereafter, PW-3 started becoming unconscious. It is, thus, evident from the statement of PW-3 that he claims to have received phone call on his mobile from Pawan as well as his friend Vikram and he had also made a phone call to Pawan on the date of occurrence, but in course of investigation, no Call Detail Record or tower location of the mobile phones of the victim and the accused have been collected. The phone of the accused and the victim were not seized by the I.O. Thus, this part of the prosecution case were not proved.

It is stated that Pawan offered tea to drink near the court, but again there is no witness on this point. The tea vendor has not been examined. The area being a busy area, no independent witness has come to say that the victim was seen in the company of the accused-respondent no.2.

We have noticed from the deposition of PW-3 that after the victim regained consciousness, he found himself in a room. He knocked the door, then one person came and threatened him with a pistol and asked him to remain silent. The said person told him that because he had not given money to Pawan, therefore this situation had come. Who was that person is not known in course of investigation. PW-3 states that Pawan Kumar is his brother-in-law. PW-3 was kept confined in the room for 5-6 days, and thereafter one person put a ‘patti’ on his eyes and left him at Kahalgaon Station, whereafter he went to Kahalgaon Police Station. The said person of Pawan Kumar had told him to give Rs. 5 lakhs to Pawan after selling his house, otherwise he would not be alive. On this point, this Court finds that during cross-examination, PW-3 has admitted that Pawan Kumar had lodged a case regarding missing of his wife Munira against this witness. PW-3 has admitted that prior to this occurrence, he had never informed the police station that Pawan Kumar was asking for rangdari. He had given the description of the place where he had taken tea, it appears that in the boundary, there is registry office and road, which are busy places.

In paragraph ‘5’ of his deposition, PW-3 has clearly stated that he did not remember that after the occurrence, when did he meet Pawan Kumar. In the room where he was confined, he had not seen Pawan. At the time of his confinement in the room, Pawan had not threatened him rather, his man had threatened him. In paragraph ‘6’, he has stated that after opening the ‘patti’ from his eyes, he had asked the people about the whereabouts of the police station. He was suggested that he had not told police about his abduction and patti, which the witness denied.

This Court further finds that the accused-respondent no.2 has himself come in the dock as defence witness no.1. He has stated that about 11 years ago, he had married with nanad of the informant. His wife Munira Khanam @ Munni Rani had married in accordance with the Hindu rites and customs, but after the marriage, the informant and the victim were pressurizing him to adopt Islam religion. He was an Advocate in the court, therefore, when he used to come to Kachahari, then finding his wife alone, they were instigating her to return to Islam for a second marriage.

The respondent no.2 has stated that on 02.01.2015, his wife along with the two children were taken away by the informant and the victim and they were put to stay in the house of Avadhhesh Kumar Pandey. They were not allowing his wife to go unless he accepts Islam. The respondent no.2 has further stated that he had filed an application under Section 9 of the Hindu Marriage Act, being Matrimonial Case No. 146 of 2015, for restoration of his conjugal rights. He had also filed a Criminal Writ Petition No. 744 of 2015, in which the High Court had directed for constitution of a Special Investigation Team to recover the wife of the respondent no.2. Later on, because his wife could not be recovered, he had withdrawn the matrimonial case.

From the pattern of cross-examination, it is evident that this witness-respondent no.2 was admittedly married to the sister of the victim (PW-3) and for that reason, the victim’s family and the respondent no.2 had become inimical to each other.

This Court further finds that in his deposition, PW-3 has not at all claimed that there was any demand of rangdari, or that he had ever informed police about the demand of rangdari by the respondent no.2. This case is based on circumstantial evidences, however, there is no witness to say that the victim (PW-3) was found in company of the respondent no.2 on the date and at the time of occurrence. The learned trial court has rightly observed that the entire prosecution case is based on the testimonies of PW-1, PW-2 and PW-3, who are close relatives and interested witnesses, as also inimical towards the accused. The investigating agency has done nothing in the name of investigation and further it has been rightly held that there is no corroboration of the testimony of the prosecution witnesses. In our considered opinion, the learned trial court has rightly appreciated the entire evidences on the record.

The principles governing a case of acquittal has been laid down by the Hon’ble Supreme Court in the case of H.D. Sundara (supra). We reproduce paragraph ‘8’ of the judgment hereunder for a ready reference:-

We are of the considered opinion that the learned trial court has not committed any error in appreciation of the evidences available on the record. No case for interference is made out.

This appeal is dismissed accordingly.

Let a copy of the judgment together with the trial court records be sent down to the learned trial court.