BIBI SHAVRIN vs The State of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.726 of 2023
In
CRIMINAL APPEAL (SJ) No.140 of 2020
Arising Out of PS. Case No.-24 Year-2016 Thana- MOUZAHIDPUR District- Bhagalpur
======================================================
Bibi Shavrin Wife of Md. Ummar Khayam @ Chuna, Resident of Village-
Maulana Chak, Kasabtola, (Behind Water Tank), PS- Mozahidpur, Distt-
Bhagalpur
... ... Appellant
Versus
1. The State of Bihar
2. Pawan Kumar Sah @ Pawan Kumar, Son of Ganesh Prasad Sah Resident of
Village- Nayatola Tinpulia (Ganeshpur), PS- Jagdishpur, PO- Khirhan, Distt-
Bhagalpur
... ... Respondents
======================================================
Appearance :
For the Appellant : Md. N. A. Shamshi, Advocate
For the State : Mr. Sujit Kumar Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA
ORAL JUDGMENT
(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.
2. 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

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under Sections 364A and 365 of the Indian Penal Code (in short
‘IPC’).
Prosecution Case
3. 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.

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4. 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.
5. 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.
6. 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:-
List of Prosecution Witnesses
Prosecution
Witness No.
Name of Witness Description
PW-1 Md. Sarmad Nagina Brother of the victim
PW-2 Bibi Shavrin Wife of the victim
PW-3 Umar Khyam @ Tunna Victim

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PW-4 Dev Kumar Second I.O.
PW-5 Jeewan Prasad Yadav First I.O.
List of Exhibits on behalf of Prosecution
Exhibit No. Description of the Exhibit Proved by/ Attested
by
‘1’ Signature of the informant on
written application
PW-2
‘2’ Formal FIR Report on which
signature of Manoranjan
Bharti is present
PW-5
'3' Writing and signature of
Manoranjan Bharti on written
application/FIR
PW-5
'4' Signature of Umar Khaya @
Chunna on 164 CrPC
statement
PW-3
List of Defence Witness
Prosecution
Witness No.
Name of Witness Description
DW-1 Pawan Kumar Sah Accused
List of Court Witness
Prosecution
Witness No.
Name of Witness Description
CW-1 Naiyer Abedin Court Witness
List of Exhibits on behalf of Defence
Exhibit No. Description of the Exhibit Proved by/ Attested
by
‘A’ Certified copy of application
under Section 9 of Hindu
Marriage Act, 1955
DW-1
‘B’ Cr.WJC No. 744 of 2015
'C' Writing and signature of
Manoranjan Bharti on written
application/FIR
PW-5

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7. 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.
Findings of the Learned Trial Court
8. 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.
9. 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

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evidence that PW-3 had ever visited Kahalgaon P.S. from where he
was taken to Mujahidpur P.S. by the I.O.
10. 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.
11. 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.
12. 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.

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13. 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.
Submissions on behalf of the Appellant
14. 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.
15. 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 .

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16. 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.
17. 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.
18. 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.
Submissions on behalf of the State
19. 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.

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20. 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.
21. 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.
22. 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.
23. 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

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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.
24. 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.
25. 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.
26. The learned trial court further found from the
deposition of the victim (PW-3), who is the star witness of this

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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).
27. 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.
28. It is submitted that the learned trial court has noted
that there was no medical evidence to prove the alleged ‘ daags ’

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(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.
29. 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.
30. 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

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principles. This is not a fit case in which any interference is
required.
Consideration
31. We have heard learned counsel for the appellant and
learned Additional Public Prosecutor for the State, as also perused
the trial court records.
32. 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

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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.
33. 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.
34. 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.
35. 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

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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.
36. 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.

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37. 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.
38. In paragraph ‘5’ of his deposition, PW-3 has clearly
stated that he did not remember that after the occurrence, when did

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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.
39. 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.
40. 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

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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.
41. 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.
42. 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

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testimony of the prosecution witnesses. In our considered opinion,
the learned trial court has rightly appreciated the entire evidences
on the record.
43. 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:-
“ 8. In this appeal, we are called upon to consider the
1
legality and validity of the impugned judgment
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 summarised 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 reappreciate the oral and
documentary evidence;
8.3. The appellate court, while deciding an appeal
against acquittal, after reappreciating 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;
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
1. (State of Karnataka v. H.K. Mariyappa, 2010 SCC OnLine Kar 5591)

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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.”
44. 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.
45. This appeal is dismissed accordingly.
46. Let a copy of the judgment together with the trial
court records be sent down to the learned trial court.
(Rajeev Ranjan Prasad, J)
(Sunil Dutta Mishra, J)
Rishi/-
AFR/NAFR
CAV DATE
Uploading Date 01.09.2026
Transmission Date 01.09.2026