IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (DB) No.800 of 2024 Arising Out of PS. Case No.-556 Year-2011 Thana- SONEPUR District- Saran ====================================================== Md. Idrish, son of Md. Nizamuddin, Resident of Mohalla- Bharpura, PS- Sonepur, District- Saran. ... ... Appellant Versus 1. The State of Bihar 2. Sharifan Bibi, W/o Late Mubarak Hussain, Resident of Mohalla- Bharpura, PS- Sonepur, District-Saran ... ... Respondents ====================================================== Appearance : For the Appellant : Md. Shamimul Hoda, Advocate Mr. Anuj Kumar, Advocate For the State : Mr. Binod Bihari Singh, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD and HONOURABLE JUSTICE SMT. SONI SHRIVASTAVA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD) Date : 25-03-2026 At the outset, learned counsel for the appellant seeks permission to correct the name of respondent no.2 in the cause title of the memo of appeal. 2. Learned Additional Public Prosecutor for the State has no objection to the same. 3. Learned counsel for the appellant is permitted to make necessary correction in the name of respondent no.2 in the cause title. 4. Heard learned counsel for the appellant and learned Additional Public Prosecutor for the State. 5. The present appeal arises out of the judgment of acquittal dated 07.05.2024, passed by the learned Additional Patna High Court CR. APP (DB) No.800 of 2024 dt.25-03-2026 2/13 Judge-cum-Sessions Judge-V, Saran at Chapra (hereinafter referred to as ‘the learned Trial Court’) in S.Tr. No. 380 of 2013, arising out of Sonepur P.S. Case No. 556 of 2011, whereby and whereunder the respondent no.2 has been acquitted of the charges levelled against him under Sections 341, 307 and 302 of Indian Penal Code (in short ‘IPC’). Prosecution Case 6. The prosecution case is based upon the fardbeyan of Noor Mohammad (since deceased) recorded by the S.I. of Sonepur Police Station on 29.12.2011 at 10:30 AM at the Railway Hospital, Sonepur, wherein it is stated that on 29.12.2011 at 08:30 AM while he was regressing to his shop from his house and reached near the village well, he saw that (1) Hamid Mian, (2) Ibran and (3) Sharifan Bibi (respondent no. 2) were present there. As soon as, he proceeded through well then Hamid Mian and Sharifan Bibi caught hold of his hands and in the meantime, Ibran who is the youngest son of Hamid Mian, poured kerosene oil on him and lit a matchstick. Thereafter they fled away. When he started crying, then his elder brother Akhlak Ahmad came running and tried to save him. In course of saving his brother, Akhlak got burn injury on his fingers of right hand. Thereafter, Noor Mohammad was Patna High Court CR. APP (DB) No.800 of 2024 dt.25-03-2026 3/13 brought to Railway Hospital, Sonepur where his treatment was going on. In course of treatment, Noor Mohammad died on 12.02.2012. 7. The police, after investigation, filed charge-sheet bearing no. 156 of 2012 dated 30.04.2012 against accused (1) Ibran and (2) Hamid Mian under Sections 326/302/34 IPC keeping investigation pending against Sharifan Bibi. Thereafter, a supplementary chargesheet bearing Chargesheet No. 12 of 2013 dated 31.01.2013 was filed against Sarifan Bibi (respondent no. 2) under Sections 326/302/34 IPC. 8. On the basis of these chargesheets, learned Chief Judicial Magistrate took cognizance against accused persons under Sections 326, 302/34 of IPC vide order dated 25.02.2013 and 09.04.2013 respectively, whereafter the case was committed to the court of sessions vide order dated 04.05.2013 putting the Sharifan Bibi (respondent no. 2) on trial in Sessions Trial No. 380 of 2013. On receipt of the records, the learned trial court framed charges against respondent no.2 under Sections 341/34, 307/34, 302/34 of the IPC vide order dated 06.12.2013. Charges were explained to respondent no. 2 to which she pleaded not guilty and claimed to be tried. 9. In course of trial, the prosecution examined as Patna High Court CR. APP (DB) No.800 of 2024 dt.25-03-2026 4/13 many as seven witnesses and got exhibited various documentary evidence such as the fardbeyan of the informant, postmortem report, charge-sheet etc. The description of the prosecution witnesses and the list of documents exhibited on behalf of prosecution are provided hereunder for ready reference in a tabular form:- List of Prosecution Witnesses PW-1 Md. Idrish (father of deceased) PW-2 Dr. Shailendra Kumar Singh (Medical Officer) PW-3 Md. Tahid (brother-in-law of deceased) PW-4 Akhlak Ahmed (brother of deceased) PW-5 Md. Naimudin, (brother-in-law of deceased) PW-6 Khairun Nisha (mother of deceased) PW-7 Tuntun Giri (tahid) List of Exhibits on behalf of Prosecution Exhibit ‘1’ Identification of the signature of PW-1 on the Inquest Report Exhibit ‘1/a’ Identification of the signature of the informant on the Fardbeyan Exhibit ‘2’ Verified copy of postmortem Exhibit ‘3’ Identification of the signature of S.H.O on the statement Exhibit ‘3/1’ Identification of Mrityunjay Choubey’s handwriting and signature on the endorsement Exhibit ‘4’ Charge-sheet Patna High Court CR. APP (DB) No.800 of 2024 dt.25-03-2026 5/13 10. Thereafter, the statement of respondent no. 2 was recorded under Section 313 of the CrPC. The respondent no. 2 in her 313 CrPC statement denied the allegations and pleaded innocence. Findings of the Learned Trial Court 11. Learned trial court after analysing the evidences available on the record found that the Sub-Inspector of Police, M. Chaubey of Sonepur Police Station, who is said to have recorded the fardbeyan of the deceased, has not been examined in this case. Further, it is noticed that the fardbeyan of the deceased is said to have been recorded in Sonepur Railway Hospital where doctors were present, but the fardbeyan was not recorded in presence of any doctor and for that reason, no doctor has been produced in support of the prosecution case. Learned trial court observed that it is the doctor of the hospital who could have stated about the mental condition of the deceased at the time of recording of the fardbeyan by the S.I. of Police. Therefore, learned trial court held that the prosecution has not brought any evidence on the point of the mental condition of the deceased at the time of recording of the fardbeyan. 12. Learned trial court has, while appreciating the evidence of PW-4, held that from his evidence, it is not clear and no clinching material has come as regards the presence of the Patna High Court CR. APP (DB) No.800 of 2024 dt.25-03-2026 6/13 accused persons at the place of occurrence. 13. Learned trial court further found that the very presence of PW-4 and PW-6 at the place of occurrence is not getting fully established, hence, prosecution cannot be said to have proved its case beyond all reasonable doubts. Accordingly, respondent no. 2 was acquitted of the charges levelled against her under Sections 341, 307, 302 IPC. Submission on behalf of appellant 14. Learned counsel for the appellant while assailing the impugned judgment of acquittal submits that the learned trial court has committed error in acquitting respondent no. 2 without proper appreciation of evidences available on the record. 15. Learned counsel for the appellant submits that the dying declaration of the deceased, recorded as fardbeyan by the police constitutes primary, substantive, and highly material evidence in the facts and circumstances of the present case. It is submitted that learned trial court has gravely erred in law and on facts in failing to properly appreciate the evidentiary value of the said dying declaration and in not placing due reliance thereupon, thereby vitiating the impugned judgment. 16. Learned counsel further submits that the PW-4 who is an eyewitness to the occurrence, has supported the prosecution case, minor contradictions are possible due to the Patna High Court CR. APP (DB) No.800 of 2024 dt.25-03-2026 7/13 passage of time in recording of his statement in the court during trial, he has remained consistent throughout during cross examination. 17. Learned counsel further submits that non- examination of the I.O. in this case would not prove fatal to the prosecution case as the dying declaration and the evidence on record fully establish the prosecution's case. 18. Learned counsel further submits that the Injury of the deceased has been fully substantiated by the medical evidence and corroborates the version of the assault. Submission on behalf of State 19. On the other hand, learned Additional Public Prosecutor for the State submits that in this case, the learned trial court has properly appreciated the entire evidences available on the record and has rightly acquitted respondent no. 2. Analysis and Consideration 20. Having heard learned counsel for the appellant and learned Additional Public Prosecutor for the State as also on perusal of the trial Court records, we find that the learned Trial Court has rightly concluded that the prosecution cannot establish its case on mere surmises and conjectures. The Sub-Inspector of Police, M. Chaubey of Sonepur Police Station, who is said to have recorded the fardbeyan of the deceased, has not been Patna High Court CR. APP (DB) No.800 of 2024 dt.25-03-2026 8/13 examined in this case. Further, it is noticed that the fardbeyan of the deceased is said to have been recorded in Sonepur Railway Hospital where doctors were present, but the fardbeyan was not recorded in presence of any doctor and for that reason, no doctor has been produced in support of the prosecution case. It is the doctor of the hospital who could have stated about the mental condition of the deceased at the time of recording of the fardbeyan by the S.I. of Police. The prosecution has not brought any other evidence on the point of the mental condition of the deceased at the time of recording of the fardbeyan. 21. This Court has further noticed that the only eye- witness in the case is said to be Akhlak Ahmed (PW-4), who has also not stated about the mental condition of the deceased brother at the time of recording of the fardbeyan. 22. This Court finds from the evidences available on the record that the prosecution witness (PW)-1 is the father of the deceased, who was not present at the place of occurrence. He had arrived directly to the Sonepur Railway Hospital after hearing about the occurrence. PW-3 has stated that he came to know about the occurrence over telephone whereafter he reached the hospital. PW-5 is the brother-in-law of the deceased who had received the information over telephone. PW-7 is a formal witness. The learned Trial Court has, therefore, rightly recorded Patna High Court CR. APP (DB) No.800 of 2024 dt.25-03-2026 9/13 that PWs-1, 3 and 5 were not present either at the place of occurrence or at the nearby places at the time of occurrence, therefore, they cannot be put in the category of eye- witnesses. So far as the evidence of PW-4 (Akhlak Ahmed) is concerned, he claims that after hearing the sought of his brother Noor Mohammed (since deceased), he went there and found that his brother was burning in the fire, he tried to pacify the fire in which he burnt his one of the fingers. According to the fardbeyan of the deceased, the accused persons had fled away after putting the deceased at fire, PW-4 came after hearing the sounds and he has stated that he had seen the accused Sarifan Bibi at the place of occurrence and she was present there. The learned Trial Court has found that this witness has stated in his cross-examination that he reached the place of occurrence 2-3 minutes after Noor Mohammed (deceased) had started burning, this witness had torn off the clothes of the deceased but he could not say that by that time anybody from the village or any other person had arrived or not. The learned Trial Court has, while appreciating the evidence of PW-4, held that from his evidence, it is not clear and no clinching material has come as regards the presence of the accused persons at the place of occurrence. 23. This Court finds on perusal of the evidence of the mother of the deceased (PW-6) that she claims to have gone to Patna High Court CR. APP (DB) No.800 of 2024 dt.25-03-2026 10/13 the place of occurrence after hearing hulla with her son Akhlak Ahmed (PW-4) and there she had seen that Hamid and Sarifan (R-2) had caught hold of her son, Ibran was pouring kerosene oil on the body of the deceased and was lighting the fire. It has come that on seeing them the accused persons had fled away. This witness has admitted that there is an old dispute with Hamid Mian. In her cross-examination, PW-6 has stated that she reached at the place of occurrence after ten minutes of hearing the hulla and her son Akhlakh (PW-4) was accompanying her. She has specifically stated that there was no one else, only later on members of the family arrived two minutes after that. The Trial Court has taken note of the statement of PW-6 in paragraph no.11 of her deposition where she has stated that there is an old land dispute with the accused Sarifan Bibi. 24. This Court finds that the finding of the learned Trial Court is based on the materials available on the record. The contradiction present in the fardbeyan of the deceased and that of the statement of the mother of the deceased (PW-6) have been noticed by the learned Trial Court and this Court has once again gone through the same. According to the fardbeyan, on hulla it was only PW-4 who had arrived at the place of occurrence. PW-4 has also not given any evidence with regard to presence of his mother (PW-6) at the place of occurrence. Patna High Court CR. APP (DB) No.800 of 2024 dt.25-03-2026 11/13 25. This Court finds on perusal of the entire materials on the record that the deceased died after about 25 days of the occurrence due to septicemia. There is no doubt that the burn injuries were caused to the deceased and in that injured condition he is said to have given the fardbeyan, therefore, it becomes important to note that whether the deceased being in injured condition, lying in the hospital, was in a mental state of mind to make his fardbeyan. The fact that neither the doctor of the hospital is a witness of the fardbeyan nor the S.I. who had recording the fardbyan, has been examined in course of trial. This would go against the prosecution. From the charge-sheet, we find that one Shailender Kumar Singh, the Medical Officer of Sadar Hospital, Chapra, has been examined in this case, who had conducted the postmortem of the dead body of the deceased. The prosecution is completely silent as to presence of any doctor of the hospital at the time of recording of the fardbeyan of the deceased. 26. In a case where the prosecution witnesses are admittedly inimical on account of old land dispute, there is no independent witness of the village to support the prosecution case and the material witnesses have not been produced as also the very presence of PW-4 and PW-6 at the place of occurrence and at the time to occurrence is not getting fully established, in Patna High Court CR. APP (DB) No.800 of 2024 dt.25-03-2026 12/13 our considered opinion the prosecution cannot be said to have proved it’s case beyond all reasonable doubt. 27. We find that in an appeal against acquittal, an appellate Court need not interfere with the judgment of the Trial Court on mere aspect unless the appellate court comes to an irresistible conclusion that the accused who has been acquitted by the learned Trial Court is guilty of the commission of the offence. There are a catena of decisions of the Hon’ble Supreme Court on this point. Reference has been made to the judgment of Hon’ble Supreme Court in the case of H.D. Sundara and Others Vs. State of Karnataka reported in (2023) 9 SCC 58. Paragraph ‘8’ of H.D. Sundara (supra) is being quoted hereunder for a ready reference:- “8. In this appeal, we are called upon to consider the legality and validity of the impugned judgment1 rendered by the High Court while deciding an appeal against acquittal under Section 378 of the Code of Criminal Procedure, 1973 (for short “CrPC”). The principles which govern the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 CrPC can be summarized as follows: 8.1. The acquittal of the accused further strengthens the presumption of innocence; 8.2. The appellate court, while hearing an appeal against acquittal, is entitled to re-appreciate the oral and documentary evidence; 8.3. The appellate court, while deciding an appeal against acquittal, after re-appreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record; 1. Karnataka v.H.K. Mariyappa, 2010 SCC OnLine Kar 5591 Patna High Court CR. APP (DB) No.800 of 2024 dt.25-03-2026 13/13 8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.” 28. We find no merit in this appeal. It is dismissed, accordingly. 29. Let a copy of this judgment along with the trial court’s record be sent down to learned trial court. Harsh/ devendra (Rajeev Ranjan Prasad, J) ( Soni Shrivastava, J) AFR/NAFR NAFR CAV DATE NA Uploading Date 31.03.2026 Transmission Date 31.03.2026