Surya Dev Kumar vs The State of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.38 of 2025
Arising Out of PS. Case No.-193 Year-2018 Thana- PUNPUN District- Patna
======================================================
Surya Dev Kumar, S/o- Late Madan Mohan Singh, Resident of village- Jat
Dumari, P.S.-Punpun, Dist- Patna.
... ... Appellant
Versus
1. The State of Bihar
2. Mumtaz Miyan @ Teni Miyan, S/o- Md. Munnu Miyan @ Munna, Resident
of Village- Jat Dumari, P.S.- Punpun, Dist- Patna.
3. Md. Safi Alam, S/o- Late Chhotani, R/o- W.No-5, Shivpur, P.S.- Town, Dist-
Shivhar, A/P- Jat Dumari, P.S-. Punpun, Dist- Patna.
... ... Respondents
======================================================
Appearance :
For the Appellant/s : Mr. Abhay Kumar, Advocate
For the Respondent/s : Mr. Bipin Kumar, Addl.PP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE RAMESH CHAND MALVIYA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 01-09-2026
Heard learned counsel for the appellant and learned
Additional Public Prosecutor for the State.
2. The present appeal has been preferred against the
judgment of acquittal dated 29.10.2024 (hereinafter referred to as
the ‘impugned judgment’) passed by the learned Additional
Sessions Judge-I, Masaurhi (hereinafter referred to as the ‘learned
trial court’) in Sessions Trial No. 732 of 2018, arising out of
Punpun P.S. Case No. 193 of 2018, whereby the present
respondents have been acquitted of the offences punishable under

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Sections 302/34 and 120B of the Indian Penal Code (in short
‘IPC’).
Prosecution Story
3. The prosecution case, in brief, is that one Suryadev
Kumar gave his fardbeyan before the Officer-in-Charge of Punpun
Police Station on 23.07.2018 at about 7:45 A.M., alleging therein
that on 22.07.2018, at about 8:30 P.M., his father’s ex-servant,
namely, Teni Miyan, came to his house and asked his father to
accompany him outside. Since Teni Miyan was very close to his
father, his father went with him. When his father did not return
home till about 12:00 midnight, the informant presumed that he
might have stayed at the dalan for the night. It was further alleged
that, in the morning of 23.07.2018, at about 8:30 A.M., he received
information from the villagers regarding the murder of his father
and that his dead body had been found lying in the garden of
Sahbir Paswan. Upon receiving the said information, he reached
the place of occurrence along with his family members and saw
several injuries on the head of his deceased father, allegedly
caused by a sharp-cutting weapon. It was further alleged that there
was a land dispute in respect of 22 kathas of land situated at Noori
Chak village with Safi Alam, Mojib Miyan and three other co-
sharers, and that litigation concerning the said land was pending

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before the court. The informant alleged that, on account of the said
land dispute, Safi Alam, Mojib Miyan and the other accused
persons, in conspiracy with the deceased’s ex-servant Teni Miyan,
committed the murder of his father.
4. On the basis of the aforesaid fardbeyan of the
informant, Punpun P.S. Case No. 193 of 2018, was registered on
23.07.2018 under Sections 302/34 and 120B of IPC. After
completion of investigation, police submitted its report under
Sections 302/34 and 120B of IPC, against three accused persons.
Chargesheet bearing number 395/2018 against accused Safi Alam
and another accused Md. Mojib was submitted on 26.10.2018 and
Chargesheet being no. 276/2020 filed against the accused namely
Mumtaz Miyan @ Teni Miyan was submitted on 10.11.2020.
Subsequently, the learned trial court took cognizance of the
offences under the aforesaid provisions on 23.11.2020. Thereafter,
vide order dated 27.04.2019 and 25.01.2023, the learned trial court
framed charges under Sections 302/34 and 120B of I.P.C. against
the accused. The charges were explained to the accused in Hindi
which they denied and claimed to be tried.
5. To substantiate the charges levelled against the
accused, the prosecution has examined altogether ten witnesses.
The complete description of the prosecution witnesses whose oral

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testimonies have been recorded by the learned trial court and the
documentary evidences proved on behalf of the prosecution are
provided hereunder in tabular form for ready reference:-
List of Prosecution Witnesses
Prosecution
Witness No.
Name of Witness Description
PW-1 Kanti Devi Wife of the victim
PW-2 Shravan Kumar Nephew of the victim
PW-3 Sudhir Kumar Son of the Victim
PW-4 Surya Dev Kumar Informant
PW-5 Sadan Singh Brother of the victim
PW-6 Seeta Kumari Daughter of the victim
PW-7 Alok Kumar I.O.
PW-8 Kundan Kumar Singh I.O.
PW-9 Dr. Ranveer Ranjan Medical witness
PW-10 Kumari Anchala I.O.
List of Exhibits on behalf of Prosecution
Exhibit No. Description of the Exhibit Proved by/ Attested
by
‘P-1/PW-2’ Signature of Shravan Kumar
on written application of FIR
PW-2
‘P-1A/PW-4’ Signature of Surya Dev
Kumar on fardbeyan of FIR
PW-4
‘P-1B/PW-5’ Signature of Sadan Singh on
fardbeyan of FIR
PW-5
‘P-2/PW-7’ Fardbeyan PW-7
‘P-3/PW-7’ Writing on seizure list PW-7
‘P-4/PW-7’ Writing on seizure list PW-7
‘P-5/PW-9’ Postmortem report PW-9
6. Thereafter, the statement of the accused was recorded
under Section 313 of the Cr.P.C. The accused denied the
correctness of the incriminating circumstances against them and
came out with a plea that they are innocent.

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7. The defence has not adduced any evidence either oral
or documentary.
Findings of the learned Trial Court
8. The learned trial court found that upon evaluating the
testimony of all the witnesses examined during the court
proceedings, it was consistently stated that harmonious and good
relationships existed between the accused Teni Miyan and the
family of the deceased. Furthermore, the court noted that there
stands no adverse comment or imputation made against the
accused in relation to this aspect, thereby eliminating any pre-
existing hostility or malice as a motivating factor in the matter
under consideration.
9. The learned court found that while the cause of death
determined is the head injury, the Investigating Officer has
explicitly stated that neither any object nor article were recovered
during the course of the investigation, nor is there any concrete
clue available regarding the specific nature or description of the
weapon that was used in the commission of the murder.
10. The learned trial court took a view on evaluating the
critical aspects concerning the reason, intention, motive, and
conduct of the accused—alongside culpability in the form of
mens-rea and conduct in the form of actus reus, which collectively

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represent the essential and indispensable elements for establishing
liability for most of the offences under criminal law—a thorough
and comprehensive scrutiny of the entire case, the accompanying
materials, and all the evidence available on record demonstrates
that there is a complete, absolute, and undeniable lack of these
fundamental elements in the present matter.
11. The learned court further concluded upon scrutiny of
the entire case, along with the materials and evidence available on
record that there is an absolute lack of these elements, specifically
regarding the last seen theory.
12. The learned court found that in circumstances where
the prosecution has completely failed to adduce any direct
evidence to substantiate it’s case, the established position of law
strictly postulates a stringent two-fold requirement that must be
rigorously satisfied to establish guilt through alternative means.
Submissions on behalf of the Appellant
13. Learned counsel for the appellant submits that the
prosecution witnesses have deposed that respondent no.2 came to
the house of the deceased on 22.07.2018 at 8:30 PM and took him
away from his house whereafter, on the next day, the dead body of
the deceased was found thrown in the garden of Shahbir Paswan.

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14. Learned counsel further submits that the learned
trial court could not appreciate that the prosecution witnesses are
wholly reliable witnesses and their testimonies are duly
corroborated by each other.
15. Learned counsel further submits that PW-7, PW-8
and PW-10 are the Investigating Officers of this case who have
also supported the prosecution case. PW-9 is the doctor who had
conducted the postmortem on the dead body and he had found
several injuries on the dead body of the deceased. The doctor
(PW-9) had opined that cause of death is the head injury and time
since death was found between 12 and 24 hours prior to
postmortem.
16. Learned counsel, therefore, submits that this Court
may interfere with the impugned judgment, call upon the
accused-respondent no.2 and 3 and after giving him appropriate
opportunity of hearing, this appeal be allowed.
Submissions on behalf of the State
17. On the other hand, learned Additional Public
Prosecutor for the State has opposed the appeal. The impugned
judgment has been defended by taking this Court through the
findings recorded by the learned trial court. It is submitted that on
perusal of the findings of the learned trial court, it may be easily

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found that the “last seen” theory have been relied upon by this
Court as an evidence to establish the guilt of the accused. It is
submitted that the “last seen” theory has been discussed by the
Hon’ble Supreme Court in the case of Sharad Birdhichand
Sarda v. State of Maharashtra reported in (1984) 4 SCC 116 ,
Trimukh Maroti Kirkan vs. State of Maharashtra reported in
(2006) 10 SCC 681 and Ganpat Singh vs. State of Madhya
Pradesh reported in (2017) 16 SCC 353 . The judgment in the
case of Kanhaiya Lal vs. State of Rajasthan reported in (2014)
4 SCC 715 is the judgment in which the Hon’ble Supreme Court
observed that there must be something more to establish the
connection between the accused and the crime. It is submitted that
in State of Punjab vs. Karnail Singh reported in (2003) 11 SCC
271 , it has been held that the “last seen” doctrine must be
considered within the totality of circumstantial evidence and
should be interpreted liberally against the accused.
18. Learned Additional Public Prosecutor further
submits that all the prosecution witnesses have made a stereotype
statement that Teni Miya had come to home, called the deceased
and took him away from the home, but all these witnesses have
accepted that there were good relationship between the accused
and the deceased.

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Consideration
19. We have heard learned counsel for the appellant and
learned Additional Public Prosecutor for the State, as also perused
the trial court’s records. In this case, altogether 10 witnesses have
been examined on behalf of the prosecution and the prosecution
has proved the signatures of prosecution witnesses on the
fardbeyan (Exhibit ‘P-1’, Exhibit ‘P-1/A’ and ‘P-1/B’
respectively). The entire fardbeyan has been marked Exhibit ‘P-
2’. Exhibit ‘P-3’ and ‘P-4’ are the seizure lists identified by PW-7
and Exhibit ‘5’ is the postmortem report identified by PW-9.
20. We have noticed that the learned trial court has
found from the depositions of the prosecution witnesses, namely
Kanti Devi (PW-1), Shravan Kumar (PW-2), Sudhir Kumar (PW-
3), Surya Dev Kumar (informant/PW-4), Sadan Singh (PW-5) and
Seeta Kumari (PW-6), that they have supported the prosecution
case to this extent that Teni Miya took the victim/deceased from
his house at about 8 o’clock in the night, but he did not return.
The learned trial court has, rightly appreciated the evidences of
these prosecution witnesses who are none else than the wife,
nephew, sons, brother and daughter of the deceased and recorded
a finding that not a single family member went outside the house
to assure whether the victim had returned and sleeping in the

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verandah . No one tried to contact on phone call, rather they took
their meal and went to sleep. We find no reason to say that this
finding of the learned trial court is perverse.
21. We have also noticed that all the witnesses denied
that there was a title suit pending in the court between the
deceased and his partners over dispute of 22 katthas of land. As
regards the relationship between the deceased and the appellant,
all the witnesses have stated that they had good relationship.
22. Kanti Devi (PW-1) has stated in paragraph ‘21’ of
her deposition that on the date of occurrence, she had a meeting
with police at her house, thereafter, there was no meeting with the
police. In paragraph ‘22’, she has stated that police had not
inquired from her. Apart from these statements, PW-1 has stated
that Teni Miya (the respondent no.2) was looking after her
husband and he was living with him. In paragraph ‘13’ of her
deposition, PW-1 has categorically stated that except her husband
and Teni, no one else was living in the said house. She has gone
to the extent of saying in her examination-in-chief that nothing
could be known in the night, in the morning, there was a hulla
that Madan Mohan had been murdered. On this information, she
had gone there.

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23. From the deposition of PW-1, it is evident that the
husband of PW-1 was killed at a distance of at least 2 miles (one
kos ) from her house in an orchard. Her husband was living in the
house as well as at Dalan. She has not stated in her examination-
in-chief that in her presence the appellant had come to her house
and had taken away her husband. Deposition of PW-1 clearly
demonstrates that she was not aware of the whereabouts of her
husband during the night.
24. PW-2 is the nephew of the deceased who has stated
that Teni Miya had worked with his uncle, during this period there
was no dispute or differences. On the date of occurrence, he had
gone to sleep in the night at 9:30 PM. PW-2 has stated that he
came to know about the presence of dead body in the orchard in
the morning at 5:00 AM. This Court, therefore, finds that while
wife of the deceased claims to have come to know about the
murder at 7:00 AM, the nephew (PW-2) has stated that he had
come to know about the dead body, in the morning at 5:00 AM. It
is difficult to believe that PW-2, who claims to be living in the
same house with his uncle, would have come to know about the
dead body early in the morning, but the wife of the deceased
would come to know about it two hours thereafter. This Court,
therefore, concludes that PW-2 is not an eyewitness.

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25. Sudhir Kumar (PW-3) has stated that his father was
taken away by Teni Miya and there are chances of his
involvement in this. This witness has also stated about good
relationship between the deceased and the appellant. In paragraph
‘16’ of his deposition, he has stated that neither he nor any other
family member had gone to see his father at the dalan and nobody
had tried to contact his father over phone. Thus, this Court finds
that this conduct of PW-3 and his family members only shows
that they were not eyewitnesses to the taking away of the
deceased by Teni Miya (respondent no.2) otherwise, they would
have definitely tried to contact Teni Miya during the night hours,
they would not have gone to sleep without any concern.
26. PW-3 has stated that in the morning at 6 o’clock,
the persons in the house were saying that perhaps the dead body
of his father was lying in the orchard, thereafter, he had gone to
the said place where a large number of persons had assembled.
This witness has stated that the orchard is at a distance of 0.5–1
kilometer approximately from the house, however, the wife of the
deceased, who has deposed as PW-1, has stated that the orchard is
at a distance of one kos (it is equivalent to 2 miles, in kilometer it
will be 3 kilometers approximately). PW-2 has stated that there
was a hulla that dead body of Madan Mohan was lying in the

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orchard behind the dalan . It is evident on scrutiny of the
testimonies of PW-1, PW-2 and PW-3 that they are giving three
different statements about the distance of the orchard from the
dalan . PW-2 has in fact stated that dalan is situated at a distance
of three bamboos (three baans ) from the house. If it is so and the
dead body was in the orchard behind the dalan , then the same is
not getting corroborated from the evidences of PW-1 and PW-3.
The trial court is correct in recording that the prosecution
witnesses, who are the members of the same and one family, have
given three different times about their knowledge that Madan
Mohan had been murdered.
27. This Court finds that the defence had suggested to
the prosecution witnesses that the deceased had an ongoing land
dispute, which the witnesses denied, but the attention of PW-3
was drawn towards his previous statements before police in which
he had stated that Safi Alam and Mojid Miya had executed sale
deeds of Bus Stand Mithapur in favour of Vikash Kumar and
Shravan Kumar in the year 2012-13 and on the said land Md.
Intiyaz Hussain had filed a Title Suit No. 600 of 2012 which was
going on in the court of learned Sub Judge, Patna against Shahnaz
Khatoon and others. The witness denied this suggestion. So far as
this aspect is concerned, the I.O. (PW-7) has stated in paragraph

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‘30’ of his deposition that no document relating to land dispute
was made available to him, but in paragraph ‘87’ of his case diary,
there is an information from spies that Madan Mohan had no
dispute with anybody else, but he had a dispute with his partners
over the land situated in Nuri Chakk.
28. We have noticed that the I.O. had not collected any
evidence at the place of occurrence. During investigation, he
could not get any clue regarding the nature of weapon used in the
crime. There was no recovery of the weapon. The I.O. had not
seized the mobile of the appellant and no call detail report or
tower location of the respondent no.2 was obtained.
29. Suryadev Kumar (PW-4) is the informant of this
case who has, though, stated in his examination-in-chief that Teni
Miya had taken away his father and his father had not returned till
late night, has stated in his cross-examination that he had put his
signature on the fardbeyan without reading the same. In
paragraph ‘12’, he has stated that on the date of occurrence, in his
house, brother, mother, sister, cousin brother and others were
present. It is evident that he does not claim his presence in the
house on the date and time when his father was taken away from
his house. This witness has stated that while leaving the house,
his father was carrying his mobile phone, but he did not

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remember his phone number. This witness was confronted by the
defence that he had made statement before police that a land
dispute is going on in the court over 22 kattha of plot.
30. Sadan Singh (PW-5) is the brother of the deceased
who has also deposed on similar lines.
31. Seeta Kumari (PW-6) is the daughter of the
deceased who was unmarried at the time of occurrence. In
paragraph ‘14’ of her deposition, she has categorically stated that
when her father was taken away by Teni Miya, at that time, her
both brothers, namely Sudhir Kumar (PW-3) and Suryadev
(informant/PW-4) were in Patna. Statement of PW-6 in paragraph
‘14’ clearly demonstrates that her both brothers who have
deposed in this case were not present in the house when their
father was taken away by this appellant.
32. Alok Kumar (PW-7) was the Officer-in-Charge of
Punpun Police Station on 23.07.2018 who has stated that he had
reached the place of occurrence on the telephonic information
received from the senior officers. He did not remember whom he
met for the first time at the place of occurrence. He has not given
the description of the place where the dead body was lying. He
could not say the distance between the orchard and the house of
the deceased. He had not sent any article or substance to Forensic

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Science Laboratory. He had not recorded the statement of the
doctor who had conducted the autopsy on the dead body. He has
admitted that the statement of the witnesses of the seizure list are
not recorded in the case diary. He had also not recorded the
statement of the owner of the orchard. In paragraph ‘29’ of his
deposition, he has stated that witness Sadan Singh had stated that
his deceased brother Madan Mohan was living in Jat Dumri and
he was engaged in investing on interest and was doing land-
related work. For the household work, he had kept Teni Miya who
had left the work about five years ago.
33. It is evident from the testimony of PW-7 that he was
not informed about the occurrence by any of the family members
of the deceased. He had reached the place of occurrence on the
information received from senior officers. He had not collected
any evidence at the place where the dead body was found. Similar
is the situation with the I.O. (PW-8). Although, PW-8 claims that
he was given charge of the investigation, he has categorically
stated that after assuming the charge of investigation, he had not
recorded statement of any witness, he had not conducted
inspection of the place of occurrence.
34. In the kind of evidences which we have discussed
hereinabove, we are of the considered opinion that the chain of

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criminological events which are required to be established in a
case based on circumstantial evidences is not getting completed.
The learned trial court has relied on a number of judgments of the
Hon’ble Supreme Court on the “last seen” theory.
35. In the case of Kanhaiya Lal (supra), the Hon’ble
Supreme Court has observed as under:-
“ 11. The primary, if not the solitary basis of
the conviction of the appellant is on the
theory of last seen, as the deceased Kala
along with accused Kanhaiya Lal visited the
house of PW 4 Hurma at 9.00 p.m. on 31-8-
2003. PW 4 Hurma did not fully support the
prosecution case and was declared hostile.
In his examination-in-chief he has stated
that on the occurrence night he returned
home at 8.00 p.m. and at about 9.00 p.m.
accused Kanhaiya Lal and Kala came to his
house and demanded daru and he gave one
bottle and received a sum of Rs 15 from
accused Kanhaiya Lal and they returned
together and the next day morning the wife
of Kala, PW 10 Shantibai came and
inquired from him about her husband Kala
and he told her about the visit of Kala with
accused Kanhaiya Lal to his house the
previous night. It is the testimony of PW 10
Shantibai that her husband Kala did not
return home on the night of the occurrence
and in the morning she went to the house of
PW 4 Hurma and inquired and came to
know from him about the visit of her

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husband along with accused Kanhaiya Lal
to his house in the night. Though PW 4
Hurma was treated as a hostile witness, the
above testimony of him is corroborated by
the testimony of PW 10 Shantibai.
12. The circumstance of last seen together
does not by itself and necessarily lead to the
inference that it was the accused who
committed the crime. There must be
something more establishing connectivity
between the accused and the crime. Mere
non-explanation on the part of the
appellant, in our considered opinion, by
itself cannot lead to proof of guilt against
the appellant.
15. The theory of last seen—the appellant
having gone with the deceased in the
manner noticed hereinbefore, is the singular
piece of circumstantial evidence available
against him. The conviction of the appellant
cannot be maintained merely on suspicion,
however strong it may be, or on his
conduct. These facts assume further
importance on account of absence of proof
of motive particularly when it is proved that
there was cordial relationship between the
accused and the deceased for a long time.
The fact situation bears great similarity to
2
that in Madho Singh v. State of Rajasthan ”
2. (2010) 15 SCC 588 : (2012) 4 SCC (Cri) 767

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36. In the case of Anjan Kumar Sarma vs. State of
Assam reported in (2017) 14 SCC 359 , the Hon’ble Supreme
Court has held in the following words:-
“ 14. Admittedly, this is a case of circumstantial
evidence. Factors to be taken into account in
adjudication of cases of circumstantial
evidence laid down by this Court are:
(1) the circumstances from which the
conclusion of guilt is to be drawn should be
fully established. The circumstances concerned
“must” or “should” and not “may be”
established;
(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. (See Sharad Birdhichand
Sarda v. State of Maharashtra [ Sharad
Birdhichand Sarda v. State of Maharashtra ,
(1984) 4 SCC 116 : 1984 SCC (Cri) 487] , SCC
p. 185, para 153; M.G. Agarwal v. State of
Maharashtra [ M.G. Agarwal v. State of

Patna High Court CR. APP (DB) No.38 of 2025 dt.01-09-2026
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Maharashtra , AIR 1963 SC 200 : (1963) 1 Cri
LJ 235] , AIR SC para 18.)”
37. In our considered opinion, the learned trial court has
not committed any error in appreciation of the evidences on the
record. We are dealing with an appeal against acquittal. No
different finding, much less any finding of fact of perversity may
be recorded in this case. The trial court judgment needs no
interference.
38. This appeal is dismissed accordingly.
39. Let a copy of this judgment together with the trial
court’s records be sent down to the learned trial court
(Rajeev Ranjan Prasad, J)
( Ramesh Chand Malviya, J)
rishik/-
AFR/NAFR
CAV DATE
Uploading Date 07.09.2026
Transmission Date 07.09.2026