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Judgment
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 24-08-2026
Heard learned Senior Counsel for the appellants, learned counsel for the Respondent Nos. 2 to 5 and learned Additional Public Prosecutor for the State as also perused the trial court’s records.
The appeal has been preferred for setting aside the judgment of acquittal dated 07.06.2023 (hereinafter referred to as the ‘impugned judgment’) passed by learned Additional Sessions Judge-III, Madhubani (hereinafter referred to as the ‘learned trial court’) in Sessions Trial No. 349 of 2021 arising out of Ladania P.S. Case No. 248 of 2020. By the impugned judgment, the respondent nos. 2 to 5 have been acquitted of the charges under Sections 302, 120(B)/34 of the Indian Penal Code (in short ‘IPC’) and Section 27 of the Arms Act as also Sections 3 and 4 of the Explosive Substances Act.
This appeal has been preferred by one of the victims of the crime. Her parents were killed in the occurrence which took place in the intervening night of 03.12.2020/ 04.12.2020 at 2:30 AM. The learned trial court has acquitted the accused persons vide the impugned judgment. Being aggrieved by the judgment of the learned trial court, the appellants are before us.
The brief history of the case and discussions on the evidences adduced in course of trial may be found in the order dated 02.04.2024 passed by this Court. Since, the said order is a substantive order, we reproduce the same hereunder for a ready reference:-
“We have heard Mr. Krishna Prasad Singh, the learned Senior Advocate for the appellants and Mr. Ansul, the learned Advocate for the respondent nos. 2 to 5.
2.The State is represented by Mr. Prameshwar Mehta, the learned APP.
3.The present appeal is against the impugned judgment dated 07.06.2023 of acquittal of the respondent nos. 2 to 5 passed by the learned 3 Additional Sessions Judge, Madhubani in Sessions Trial No. 349 of 2021 arising out of Ladaniya P.S. Case No. 248 of 2020.
4.A couple were killed in their house. The suspicion was on respondent no. 2 to 5, who are the parents of one of the deceased and the elder brother and sister-in-law of the deceased. In the background of this occurrence, there is land dispute.
5.P.W. 3 had lodged the FIR alleging that her sister/Renu Kumari (one of the deceased) was married in the year 2007 with Rajeev Sah. Renu (deceased) was working as a teacher and had four children. Renu and her husband had dispute with the elder brother/Sanjay Sah (respondent no. 5) and his wife (respondent no. 2). The parents of Rajeev (respondent nos. 3 and 4) also were on the side of Sanjay Sah and his wife. Renu and her husband had expressed apprehension sometimes ago about the possibility of their being harmed at the instance of Sanjay Sah. Later, P.W. 3 was informed that both his sister and brother-in-law were shot dead in their room.
6.On the basis of the FIR lodged by the P.W. 3, the subject FIR was instituted for investigation against the respondents.
7.The respondents were put on Trial, whereafter perusing the evidence of five of the witnesses including the Doctor and the investigating officer, the Trial Court acquitted the respondents on the ground of no evidence against them.
8.It so happened because Ram Sevak Sah (P.W. 1), a maternal uncle of Renu, was not aware of the name of the assailants and he claimed to have learnt from the informant (P.W. 3) that the respondents were responsible for the murder of Renu and Rajeev.
9.P.W. 2, a cousin of the informant, did not support the prosecution case and was declared hostile.
10.P.W. 3/the informant had not seen the occurrence but had based his opinion on the basis of disclosure made to him by his sister (deceased) prior to the occurrence.
11.The Doctor (P.W. 4) had found both the deceased persons having been shot dead.
12.The investigator had recorded the statements of Basant Kumar Sah, Santosh Kumar Sah and Varsha Kumari/the appellant before this Court, who is the eight years old daughter of the deceased. Later, the statement of Varsha Kumari was also recorded under Section 164 of Cr.P.C. However, at the Trial, Varsha Kumari was not brought to the witness-stand.
13.The Trial Court, while delivering the judgment of acquittal, even though held that Varsha was an important witness, who was not brought to the witness stand, but did not do anything to rectify the same and proceeded to acquit the respondents.
14.Varsha was sleeping in the room when her parents were shot dead. Her deposition was absolutely important for unraveling the truth; even, though, at the time of occurrence, she was only eight years old. The investigator had also thought it important to have her statement recorded under Section 164 of Cr.P.C.
15.There is no reason why after her statement was recorded under Section 164 of Cr.P.C., she should have been left out and not brought to the witness-stand to depose at the Trial.
16.True it is that a Trial Court has to act on the evidence brought before him but there is no denying that the criminal jurisprudence does not require a Judge to be reticent all the time. He does act as an umpire but not always. He sits on the chair for seeking truth. A Judge has all the tools under the Code to effect justice. After all, a fair Trial does not only mean fairness towards the accused but also to the victim.
17.The learned Advocate for the respondents has very vehemently argued that there would not be a single case where all important witnesses are always examined but then exercising the powers under Section 386 or 391 of the Cr.P.C. by the Appellate Court would only prejudice the case of the respondents, who have earned a merited acquittal for the paucity of evidence. He has further submitted that the provisions under Section 391 of Cr.P.C. should only be exercised when the party making such request was prevented from presenting the evidence at the Trial despite due diligence being exercised or that the facts giving rise to such prayer came to light at a later stage during the pendency of the appeal and that non-recording of such evidence would lead to failure of justice (refer to Ajitsinh Chehuji Rathod vs. State of Gujarat & Anr. reported in 2024 SCC OnLine SC 77). This argument was advanced by Mr. Ansul on the Bench having considered directing the Trial Court to record the evidence of Varsha Kumari, whose statement had already been recorded under Section 164 of the Cr.P.C.
18.While hearing this appeal, we were initially of the view that the Trial Court has completely failed in his duty to elicit the truth of the matter by not questioning the prosecution about the reason for non- examination of Varsha Kumari, the surviving child of the deceased couple and contemplated setting aside of the judgment of acquittal under Section 386 of Cr.P.C. and sending the case back to the Trial Court for re-trial; but on a second thought, we have found it necessary to exercise our option under Section 391 of the Cr.P.C. for getting further evidence in the matter through Varsha Kumari.
19.We are conscious of the fact that the powers under Section 391 of Cr.P.C. is only with respect to the object to appropriately deciding the appeal and thereby securing the ends of justice. Additional evidence may be necessary not only when it will be impossible to pronounce the judgment without that, but also when there would be failure of justice.
20.Under both the provisions viz. Section 386 and 391 of Cr.P.C., failure of justice is subsumed as a condition precedent.
21.We deem it appropriate to exercise the option under Section 391 for the reasons that it would be least prejudicial to the case of the respondents and they shall have the opportunity to cross-examine Varsha Kumari.
22.The evidence shall be recorded in their presence but keeping in mind the guidelines for recording the evidence of a vulnerable witness. Varsha Kumari is undoubtedly a vulnerable witness, as she is a child and there is a possibility of the presence of the respondents intimidating her in coming forth with the truth.
23.For the afore-noted reasons, we direct the Trial Court to get the statement of Varsha Kumari recorded after giving due notice to her.
24.The respondents shall furnish their bonds in the sum of Rs.10,000/- (ten thousand) each with two sureties of like amount each to the satisfaction of the Trial Court within a period of fifteen days from the passing of this order, for ensuring their presence at the Trial Court.
25.The statement of Varsha Kumari shall be recorded which would in consonance with the guidelines for examining a vulnerable witness.
26.The Trial Court shall complete this process within a period of three months and shall certify the deposition of Varsha Kumari to this Court not later than the first week August.
27.This matter shall be heard thereafter.
28.Re-notify this case on 05 of August, 2024.
29.After the afore-noted deposition is recorded, the respondents shall also be given the opportunity of explaining their cause under Section 313 of the Cr.P.C., which also shall be certified to this Court.”
At this stage, we have noticed that pursuant to the above-mentioned order, the learned trial court has recorded the statement of the victim (appellant no. 1) as a court witness on 10.05.2024. The victim (CW-1) has supported the prosecution case. In her examination-in-chief, she has stated that she was sleeping with her father and mother on 04.12.2020 at 12 O’clock in the night when her elder father Sanjay Sah entered into the room with five persons. She has further stated that her elder father shot at the temporal region of her mother by a gun. An another person of black colour was putting a towel onto his face, he had shot at the head of her father. She has further stated that in the courtyard (angan), some voices were coming, she has stated that those voices were of her maternal grandfather, maternal grandmother, elder mummy and other persons.
This Court finds that the defence cross-examined her and suggested that in her statement before police, she had not stated that her elder father had entered into the room with five persons and he had shot at the temporal region of her mother by a gun and that her maternal grandmother, grandfather and elder mummy and other persons were speaking and their voices were coming. The witness denied the suggestion. She was also suggested by the defence that in her 164 CrPC statement, she had not taken name of her elder mummy, this witness has stated that she did not remember but she further stated in her 164 CrPC statement that she had disclosed the name of Sanjay and some other accused persons.
We have further noticed that as per the directions contained in paragraph ‘29’ of the order dated 02.04.2024 passed by this Court, the learned trial court has recorded the statement of the accused persons under Section 313 CrPC. Copy of the statements have been made available to this Court. Those statements were recorded on 10.06.2024.
Submissions on behalf of the Appellants
Learned senior counsel for the appellants submits that from the evidence of Varsha Kumari (CW-1), it is evident that she is an eye witness to the occurrence. In her presence, her parents were killed. It is submitted that the learned trial court as well as the learned Public Prosecutor who was handling this case did not do their duty piously to produce all the evidences during the trial as a result whereof the case resulted in an acquittal of the accused persons. It is submitted that the judgment of the learned trial court be set aside and by appreciating entire evidence available on the record including that of CW-1, this Court may record a conviction of the accused persons and pass appropriate order of sentence.
Submissions on behalf of State and Resp Nos. 2 to 5
On the other hand, learned Additional Public Prosecutor for the State as well as learned counsel for the respondent nos. 2 to 5 have submitted that it would be appropriate to set aside the impugned judgment by this Court and remit the matter to the learned trial court for appreciation of the entire evidences on the record afresh and pass a judgment. If on appreciation of the evidences on the record, the learned trial court would come to a conclusion that it is a case of conviction, the trial court may pass a judgment of conviction and then an order of sentence.
It is submitted that even as being an Appellate Court, this Court is fully competent and within its jurisdiction to appreciate the evidences available on the record including that of victim (CW-1) and pass an appropriate judgment including one of conviction and order of sentence but in the present case, it appears that adequate opportunity may still be required to be given to the defence. It is pointed out that the victim (CW-1) was suggested by the defence that in her statement before police, she had not stated certain things which she denied, now if the defence wants to take a contradiction in this regard then for that purpose, the defence may take steps to call the I.O. of the case for re-examination. It is further submitted that after recording of 313 CrPC statement on 10.06.2024, the defence was required to be given an opportunity to lead evidence. It is, therefore, submitted that the impugned judgment of acquittal be set aside and the matter be remitted to the learned trial court for fresh consideration after giving adequate opportunity to the prosecution as well as defence to participate in the trial in accordance with law.
Consideration
Having regard to the submissions noted hereinabove and on going through the evidences available on the record, we find substance in the submissions of learned Additional Public Prosecutor for the State as well as learned counsel for the Respondent Nos. 2 to 5. We would not give any observations at this point of time on the evidentiary value of the testimonies of the prosecution witnesses. This Court would set aside the impugned judgment and remit the matter to the learned trial court for passing an appropriate judgment and order, as the case may be, after giving adequate opportunity to the prosecution as well as defence to examine/ cross-examine/ re-examine, as the case may be, the witnesses and then an opportunity of hearing to both the sides. Accordingly, this Court set aside the impugned judgment of acquittal.
The trial court’s records are remitted to the learned trial court, namely, learned Additional Sessions Judge-III, Madhubani. As observed hereinabove, the trial court shall give adequate opportunity to the prosecution as well as defence to examine/ cross-examine/ re-examine, as the case may be, the witnesses and then an opportunity of hearing to both the sides.
Both the parties shall cooperate in early conclusion of the matter. The learned trial court shall ensure that shorter dates be fixed in the matter and fresh judgment/ order, as the case may be, be passed within a period of four months from the date of receipt of the records.
From the trial court judgment, we have found that out of four accused persons, who faced the trial, three, namely, (1) Runa Devi, (2) Chhedi Sah and (3) Bina Devi were on bail, therefore, they shall be allowed to continue on bail on the bail bonds furnished by them by virtue of the order of this Court passed on 02.04.2024. Sanjay Sah (respondent no. 5) was in jail on the date of judgment of acquittal, therefore, he shall surrender in the trial court within a period of two weeks from today.
It is made clear that vide our order dated 02.04.2024, we had directed the accused persons (respondent nos. 2 to 5) to furnish their bail bonds in the sum of Rs.10,000/- (Rupees Ten Thousand) each with two sureties of like amount each to the satisfaction of the trial court for ensuring their presence at the trial court. By virtue of this judgment, now the status quo-ante has been restored and while respondent nos. 2 to 4, who were earlier on bail during trial, shall be allowed to continue on bail, the respondent no. 5 who was in jail shall surrender in the trial court to face the trial.
It is made clear that this Court has not made any observations on the merit of the case and no part of it shall be construed as any opinion of this Court on the evidences led by the prosecution. The learned trial court shall pass fresh judgment/order, as the case may be, based on its independent opinion.
This appeal is allowed to the extent indicated hereinabove.
The trial court’s records be sent forthwith to the learned trial court through a special messenger.