Patna High Court
Rahul Kumar vs The State Of Bihar on 17 February, 2026
Author: Anshuman
Bench: Anshuman
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.331 of 2018
Arising Out of PS. Case No.-240 Year-2010 Thana- SHIVSAGAR District- Rohtas
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Rahul Kumar S/o Shreeveer Singh, R/o Village- Goyala, P.s.- Shahpur,
District- Muzaffarpur Nagar U.P..
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
Mrs. Sushmita Mishra, Advocate
Mrs. Vaishnavi Singh, Advocate
Mr. Ritwik Thakur, Advocate
For the Respondent/s : Ms. Shashi Bala Verma, APP
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CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
and
HONOURABLE MR. JUSTICE DR. ANSHUMAN
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI)
Date : 18-02-2026
The appellant was a Constable of Central Reserve
Police Force (CRPF). In connection with Sessions Trial No. 381 of
2011, arising out of Shivsagar P.S. Case No. 240 of 2010, he was
convicted by the learned Additional Sessions Judge, Fast Track
Court No.-2, under Section 235 (2) of the Code of Criminal
Procedure, 1873 for committing offence under Section 302 of the
Indian Penal Code and sentenced to rigorous imprisonment for
life.
2. The aforesaid judgment of conviction and sentence is
under challenge in the instant Shivsagar P.S. Case No. 240 of 2010
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was registered on the basis of a written complaint submitted by
one Ram Lal, Inspector of C.R.P.F. of F/198 Company, stationed at
Vishakhapatnam in the State of Andhra Pradesh. The informant
along with other officers and force, attached to the said Company
of CRPF, came to Raipur Chaur on 7th of October, 2010 for
performing Bihar Assembly Election duty. They were temporarily
staying in Scheduled Caste and Scheduled Tribe Hostel at Raipur
Chaur. On 8th of October, 2010, the informant and Company
Commander, Rohit Raj Diwana were sleeping in the two separate
beds in Room No. 7 of the said hostel. One Sub-Inspector, R. N.
Pandey and Sub-Inspector, Hussain Ali were sleeping in the most
southern side room of the hostel. From 04.00 a.m. to 06.00 a.m.,
on 9th of October, 2010, one Mritunjay Khan and the appellant
Rahul Kumar were performing Sentry Duty on the northern side
and southern side of the roof, respectively. One Anil Sharma was
on duty at the main gate of the said hostel and one Mansa Khanaut
was performing duty in front of the "Kote" (Armory Room) from
04.00 a.m. to 06.00 a.m. Suddenly, at about 05.15 a.m., the
informant heard sound of repeated firings; he immediately woke
up and saw that Constable No. 75266121, Rahul Kumar, being
armed with one AK-47 rifle, was fleeing from his room. He also
saw that inspector, Rohit Raj Diwana received injury on his person
by indiscriminate firing and lying dead in pool of blood in his bed.
At that time, he again heard sound of repeated firing. He came out
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of his room and saw Constable, Rahul Kumar was running towards
the roof with AK-47 rifle in his hand. Hearing sounds of firing,
other officers and Jawans of CRPF woke up and proceeded
towards southern side of the said hostel. They also found Sub-
Inspector, R. N. Pandey lying dead in pool of blood, being
assaulted by several gun-shot injuries. The Sub-Inspector, Ali
Hussain, who was sleeping in the said room with Sub-Inspector, R.
N. Pandey told the informant and others that the appellant fired at
R. N. Pandey with the help of AK-47 rifle and fled away on the
roof. One Hawaldar, Anil Sharma was taking bath under the tube-
well in front of the hostel. Suddenly, he was hit by a bullet,
causing abrasion on his head. The informant also learnt that when
Rahul Kumar was proceeding towards the roof after committing
murder of R. N. Pandey, he fell down and received injury on his
head. The informant informed the matter to his superior officers.
The superior officers came to the spot. Thereafter, Hawaldar, Babu
Ram Singh, Birendra Singh, Bhopen Gogoi and others managed to
apprehend the appellant, Rahul Kumar with one AK-47 rifle. At
the time of apprehension, Rahul Kumar resorted to one round
firing but nobody was injured. The possession of AK-47 rifle was
taken over by the officers of the force and it was found that one
magazine of the rifle was empty and another magazine was loaded
with cartridge.
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3. The informant also stated that on 8th October, 2010, the
appellant, Rahul Kumar and some other Jawans were taken to task
by the superior officers due to the reason that they did not obey the
directions of the superior officers. As the appellant was rebuked by
his superior officers, he took revenge by committing murder of
Rohit Raj Diwana and R. N. Pandey by resorting to fire with the
help of AK-47 rifle.
4. The said information was recorded by one Ajay Kumar,
SHO, Baddi Outpost at Raipur Chaur, which was read over to the
appellant and the informant put his signature on the complaint.
Then the complaint was sent to the SHO, Shivsagar Police Station
for registration of a specific case against the appellant.
Accordingly, Shivsagar P.S. Case No. 240 of 2010, dated 9 th
October, 2010, was registered under Section 302/307 of the Indian
Penal Code and Section 27 of the Arms Act. Sub-Inspector, Ajay
Kumar of Baddi Outpost was entrusted to cause investigation of
the case.
5. During investigation, the Investigating Officer inspected
the place of occurrence; recorded the statement of the witnesses;
seized the offending weapon as well as "Kote" (armory register),
and other documents, seized the offending fire arm and conducted
the inquest over the dead bodies of Rohit Raj Diwana and R. N.
Pandey. The dead bodies were sent for post-mortem examination.
The Investigating Officer collected the post-mortem reports of the
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deceased. He also collected the report of the arms expert with
regard to workability and functionality of AK-47 rifle. The seized
AK-47 rifle was examined at Forensic Science Laboratory by
ballistics experts and on conclusion of investigation, he submitted
charge-sheet under Section 302/307 of the Indian Penal Code and
Section 27 of the Arms Act before the learned Chief Judicial
Magistrate, Rohtas at Sasaram on 4th January, 2011.
6. Since the offence under Section 302/307 of the Indian
Penal Code is exclusively triable by the Court of Sessions, the
learned Chief Judicial Magistrate committed the case record to the
Court of learned Sessions Judge, Rohtas at Sasaram. The learned
Sessions Judge transferred the case to the Fast Track Court No. II
of the learned Additional Sessions Judge at Sasaram for trial and
disposal.
7. The Lower Court record further shows that the learned
Additional Sessions Judge, Fast Track Court-II, Rohtas at Sasaram
framed charge against the appellant under Section 302/307 of the
Indian Penal Code and Section 27 of the Arms Act. The charge, so
framed, was read over and explained to the accused/appellant, who
pleaded not guilty and claimed to be tried.
8. During trial, prosecution examined 17 witnesses. Inquest
reports, postmortem reports, Kote (Armory Register) and some
other documents were marked exhibits, which we propose to refer
subsequently in the body of the judgment. After examination of the
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witnesses on behalf of the prosecution, the accused was examined
under Section 313 of the Cr.PC. He pleaded his innocence and that
he was falsely implicated in the case. The appellant, however, did
not examine any witnesses on behalf of his defence. On conclusion
of trial, the learned Trial Judge held the appellant guilty for
committing offences under Sections 302/324 of the Indian Penal
Code. Finally, the learned Trial Judge sentenced the appellant to
suffer rigorous imprisonment for life for the offence under Section
302 of the IPC.
9. The appellant has assailed the said judgment of
conviction and order of sentence in the instant appeal.
10. The prosecution examined the following witnesses
during trial in S.T. No. 381 of 2011, which may be listed in the
following categories::
(i) CRPF Personnel: PW-1 Hasrat Ali, PW-2 Anil
Sharma, PW-3 Suresh Chandra, PW-4 M.L. Narayanan, PW-5
Mansha Khanrat, PW-6 Bhupen Gagoi, PW-7 Rajeshwar Rao, PW-
8 Havaldar Baburam, PW-9 Mirtyunjay Khan, PW-10 Hasan Ali,
PW-12 Anil Kumar Singh, and PW-13 Ram Lal. PW-12 Anil
Kumar Singh was declared hostile by the prosecution and PW-13
Ram Lal, was the informant, who made the statement before the
police about the incident which was recorded by the police and
treated as the FIR. The said statement of PW-13 is the basis of
registration of Shivsagar P.S. Case No. 240 of 2010.
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(ii) Police witnesses: PW-11 Sudhir Kumar Sinha, who
was posted as Sergeant Major at Sasaram on 30.10.2010,
examined the AK-47 rifle which was produced before him by Sub-
Inspector Ajay Kumar. PW-16 Ajay Kumar is the Investigating
Officer of the case.
(iii) Medical Witness: PW-14 was the Medical Officer
of Sasaram Sadar Hospital who conducted the postmortem
examination on the dead bodies of CRPF personnel Rohit Raj
Diwana and R.N. Pandey.
(iv) Scientific Expert: PW-17 Rakesh Kumar, was
posted as Assistant Director, Forensic Science Laboratory, Patna,
on 7.04.2011. He scientifically examined the seized AK-47 rifle in
his laboratory and submitted his forensic report.
11. Some documents were marked exhibits which we
propose to refer subsequently in the body of the judgment.
12. At the outset, we feel it necessary to narrate in brief
the evidence adduced by the witnesses on behalf of the prosecution
during trial.
13. Since PW-13 Ram Lal was the informant of the case,
it would be beneficial to start with his deposition, as it has a direct
bearing on the genesis of the prosecution case. From the evidence
of PW-13 as well as other CRPF personnel examined during trial,
it emerges that CRPF Company F/198, comprising 76 officers and
jawans, had been deployed in Bihar in connection with the
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Assembly Election, 2010. They took shelter on and from
07.10.2010in a Scheduled Caste students' hostel at Raipur Chaur.
On the night of 08.10.2010, PW-13 was sleeping in Room No. 7 along with the Company Commander, namely, Rohit Raj Diwana, on two separate beds. In the early morning of 09.10.2010, he heard sounds of repeated firing, whereupon he woke up and saw that the appellant was fleeing away with AK-47 rifle in his hand from the door of their room. He also found Rohit Raj Diwana lying dead in a pool of blood. Immediately thereafter, PW-13 heard sounds of indiscriminate firing coming from the southern side of the camp. He rushed towards that direction with his firearm, when ASI Hasan Ali informed him that the appellant had shot dead R.N. Pandey by gunshot injury and had fled towards the roof of the hostel. PW-13 then went to the southern-side room where RN Pandey was sleeping and found ASI R.N. Pandey lying dead in pool of blood. PW-13 thereafter rushed towards the staircase of the hostel leading to the roof, where he found the appellant saying that he had killed Rohit Raj Diwana and R.N. Pandey, and that he would kill anyone who will attempt to approach him. PW-13 informed the incident to higher officials of the company over phone. After about two hours, the appellant was apprehended by CRPF jawans from the roof of the said hostel and from his possession, one AK-47 rifle along with two magazines, 31 blank cartridges and 29 rounds of live cartridges were recovered. The Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 9/86 seized articles were handed over to the police, whereupon the statement of PW-13 was recorded and treated the same as the FIR, leading to the registration of Shiv Sagar P.S. Case No. 240 of 2010, and investigation was taken up.
Evidence of other witnesses are as follows:
14. In his examination-in-chief, PW-1 stated that he woke up early, went to the toilet and then to the hand pump to fetch water, and while near his room heard gunshots which he initially believed to be a Naxalite attack. He woke his colleagues and heard firing from another direction as well. He later learnt that Assistant Commandant Rohit Raj Diwana and Sub-Inspector R.N. Pandey had been killed and that they were involved in that firing.
He identified the accused in court as a member of the same company, which comprised 76 personnel staying in the same hostel. He proved three seizure lists (marked Exhibits 1 to 3/A) and two inquest reports of the deceased (marked Exhibits 4 to 5/A), all dated 09.10.2010, prepared by SHO Ajay Kumar in his presence, identifying the handwriting, signatures of the SHO and his own signatures thereon.
15. In cross-examination, he maintained that the incident was perceived as a Naxalite attack, that even later he came to know the two officers had been killed in such an attack, and that Naxalites were searched but had fled. He stated that police arrived about two hours after the incident. Regarding one seizure relating Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 10/86 to recovery of a bullet, he admitted signing the document as a formality when told to do so by the Inspector.
16. PW-2 is a Constable in the CRPF, posted with Company F/198 at the Scheduled Caste school in Raipur Chaur for election duty during the Bihar Legislative Assembly elections. He was on duty at the main gate of the school from 4:00 a.m. to 6:00 a.m. on 09.10.2010.
17. In his examination-in-chief, PW-2 deposed that at around 5:15 a.m., while on gate duty, he heard gunfire which he initially believed to be a Naxalite attack. He took position, and after 10-15 seconds heard more gunfire. Thereafter, he saw Constable Rahul Kumar (the accused) on the terrace stating, "Mujhe jo karna tha wah kar diya, ab kisi ko kuch nhi krna hai, tum log position kyon le rahe ho." (I have done what I had to do, now no one has to do anything, why are you guys taking position.) The Company Commander and others questioned the accused, and it appeared to PW-2 that the act was committed due to scolding received by the accused from deceased Rohit Raj Diwana the previous night. PW-2 then proceeded to room no. 7 where he saw deceased Rohit Raj Diwana lying in a pool of blood, and subsequently in another room saw deceased R.N. Pandey similarly lying in blood. SI Hasan Ali informed him that Constable Rahul Kumar had killed both officers with an AK-47. PW-2 identified the accused in court as the same constable who was in uniform with an Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 11/86 AK-47 on the terrace/building and who had been in the same battalion for about five months.
18. In cross-examination, PW-2 clarified details of the school premises, duty rosters, arms register maintained by the Kote Commander (M.L. Narayanan), arrival of the company on 07.10.2010, and mess arrangements. He stated that the company was not afraid of Naxalite attacks despite the area being Naxal- affected. He denied that departmental action was initiated against 14 personnel (including himself) to extract information or that he was deposing falsely to avoid such action. He maintained that he had stated to the police that the accused committed the incident and reiterated that the accused is not innocent.
19. Certain minor discrepancies were suggested regarding the exact time of hearing the first gunshot (stated as 5:15 a.m. though an earlier mention of 6:15 a.m. was put to him) and duty postings, but he affirmed that the accused was on rooftop duty and that four constables, including the accused, were present at the material time.
20. PW-3, a Sepoy in the CRPF Company F/198, was deployed for election duty at the Scheduled Tribe school hostel in Raipur Chaur, Rohtas District. He had completed his duty shift from 2:00 a.m. to 4:00 a.m. on 09.10.2010 and had gone to sleep on the rooftop, placing his issued AK-47 rifle (with four magazines and 120 rounds) beside him.
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21. In his examination-in-chief, PW-3 deposed that he woke up around 5:15 a.m. to the sound of gunfire. Upon awakening, he discovered that his AK-47 rifle and ammunition were missing. Shortly thereafter, Constable Rahul Kumar came running up the stairs to the rooftop, shouting loudly that there had been no Naxalite attack, that he had done what he had to do, that he had killed Assistant Commandant Rohit Raj Diwana and Sub- Inspector R.N. Pandey, and that no one should take positions or inform the authorities via mobile phone, threatening to kill anyone who attempted to do so or to apprehend him. The accused specifically called out to Inspector Ram Lal Sah (a Jat like himself) assuring him he would not be harmed, directed that the Kote N.C.O. Register be sent up, and proceeded to deposit an INSAS rifle while having an AK-47 issued in his name. The accused was armed with both an AK- 47 and an INSAS rifle slung over his shoulder. PW-3 reported the theft of his weapon to the Guard Commander and later to Inspector Ram Lal Sah. Subsequently, the accused was apprehended on the rooftop by Havaldar Babu Ram and other constables (Mandeep, Virendra, and Bhupen Gosai) around 7:45 a.m. after the civil police had arrived, during which process one shot was fired but no one was injured. PW-3 identified the accused in court and categorically stated that the accused murdered both deceased officers using an AK-47 rifle. Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 13/86 He further stated that his missing AK-47 was recovered from the accused and handed over to the police.
22. In cross-examination, extensive suggestions were put regarding duty rosters, arms issuance procedures, the Kote Register, and the Duty Register. PW-3 admitted to certain overwritings and alterations in the Kote Register (pages 58- 63) concerning magazine and ammunition quantities for several personnel, including the accused (e.g., magazines changed from 2 to 4 and ammunition from 60 to 120 for the accused). He also acknowledged alterations in the Duty Register (cuttings and overwritings in weapon columns against the accused's name and his own). A departmental inquiry had been conducted against him in connection with the incident, but he denied any knowledge of the accused testifying against him therein or that his evidence was false to save himself. He maintained that the cuttings/alterations in the Duty Register were not done later with connivance to implicate the accused. He clarified details of camp layout, duty postings, and arms issuance protocols but firmly denied that his account of the accused & shouts and confessions on the rooftop was fabricated. The testimony of PW-3 is that of a direct ocular and auricular witness to a detailed extra-judicial confession made by the accused immediately after the incident in the presence of several personnel on the rooftop. The accused's statements, "Mujhe jo karna tha wah maine kar diya tatha koi naxali hamla Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 14/86 nahi hua hai tatha maine Rohit Raj Diwana tatha R.N. Pandey ki hatya kar diya hai tatha kisi ko bhi position lene ki aawyashakta nahi hai." (I have killed Rohit Raj Diwana and R.N. Pandey, there has been no Naxalite attack), coupled with threats and specific assurances to Inspector Ram Lal Sah constitute a clear, unequivocal, and voluntary admission of guilt. This confession is substantially corroborated by the recovery of PW-3's own missing AK-47 from the accused, establishing the weapon used, the accused's manipulation of the arms register to exchange an INSAS for an AK-47 post-incident, his armed presence on the rooftop with duty opportunity, the consistent account of PW-2 regarding the accused's earlier announcement on the terrace and the motive of prior scolding.
23. PW-4, Havaldar M.L. Narayanan, served as Kote Commander, Kote Guard Commander, and Main Gate Guard Commander in CRPF Company F/198 stationed at the S.C.S.T. School Hostel, Raipur Chaur, for election duty. In his examination- in-chief, PW-4 deposed that at around 5:15 a.m. on 09.10.2010, he heard gunfire, armed himself, and emerged from the Kote. He heard further firing and, while ascending the stairs to the rooftop, saw Constable Rahul Kumar armed with both an INSAS and an AK-47 rifle. The accused declared that there had been no Naxalite attack, that he had killed DSP O.C. Rohit Raj Diwana and S.I. R.N. Pandey, and instructed personnel not to fire. PW-4 then Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 15/86 proceeded to the rooms of the deceased and observed both officers dead, with blood spread and AK-47 empty cartridges cases scattered. From the rooftop, the accused repeatedly announced his sole responsibility for the incident, abused the officers, and directed Inspector Ram Lal Sah to send the Kote In-Out Register so that he could enter his name and ensure no one else was implicated. On Ram Lal Sah's orders, PW-4 sent the register via Constable Mrityunjay Khan to the rooftop, whereupon the accused deposited an INSAS rifle with 5 magazines (100 rounds) and had an AK-47 issued in his name. PW- 4 proved the relevant entries in the Kote Register (pages 62-63) in the accused's handwriting (marked Exhibit 6) and his own entries/signatures from pages 58- 63 (marked Exhibit 7). He attributed motive to prior harassment of the accused by the deceased Rohit Raj Diwana (separating 17 personnel including the accused for not eating khichdi, and late- night questioning/scolding on 08.10.2010 till midnight). He stated that the accused took Suresh Chandra's AK-47 (while the latter was sleeping on the rooftop) to commit the murders. PW-4 proved seizure lists of recovered cartridges (Exhibits 8, 1/2, 2/2, 3/2) and various summaries/entries in the Duty Register (Exhibits 9/1 to 9/4 and related). He identified the accused in court.
24. In cross-examination, PW-4 was confronted with details of departmental inquiries against himself and others (including the accused), alterations/overwritings in the Duty Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 16/86 Register and Kote Register, and specific statements made in the departmental inquiry (e.g., admitting certain changes in registers with Havaldar Babu Ram, initially issuing INSAS to the accused and AK-47 to Suresh Chandra on 08.10.2010). He acknowledged a departmental inquiry against him and 15-16 others, testified in the accused's inquiry, and admitted some procedural irregularities/tampering in registers but denied orchestrating the case to save himself or falsely implicating the accused. He maintained the truth of his account regarding the accused's declarations, threats, and manipulation of the Kote Register.
25. PW-5, a Constable in CRPF Company F/198, was on Kote Guard duty from 4:00 a.m. to 6:00 a.m. on 09.10.2010 at the Scheduled Tribe school hostel camp in Raipur Chaur. In his examination-in-chief, PW-5 deposed that at around 5:25 a.m., he heard gunfire which he initially believed to be a Naxalite attack on the camp. He took position and, seconds later, heard further firing. Shortly thereafter, he heard the accused Rahul Kumar shouting from the rooftop: "Mujhe jo karna tha wah kar diya hai, tum log position kis liye le raha hai" (I've done what I had to do. Why are you people taking positions?) The accused openly declared that he had killed O.C. Rohit Raj Diwana and S.I. R.N. Pandey, threatened to kill any soldier who informed the authorities, and specifically assured Inspector Ram Lal Sah that he would not be harmed. The accused, armed with an AK-47 and an INSAS rifle slung over his Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 17/86 shoulder, directed that the Kote register be sent up so that no other soldier would face trouble. The Kote Commander complied by sending the register via Constable Mrityunjay Khan, following which an INSAS rifle and magazines were returned. Approximately 1-2 hours later, company personnel apprehended the accused on the rooftop amid a single gunshot (no injuries). PW-5 later visited the rooms of the deceased and observed both officers lying in pools of blood with AK-47 empty cartridges scattered nearby. He recounted the prior khichdi incident at Kulhariya station (where 17 personnel, including the accused, initially refused khichdi and were separated) and the late-night scolding of the accused on 08.10.2010 as the background. He further stated that Havaldar Anil Singh (injured by a grazing bullet) informed him that the appellant shot R.N. Pandey. Subsequently, PW-5 identified the accused in court and categorically attributed the murders to him.
26. In cross-examination, PW-5 provided details of the camp arrival, duty assignments, layout, arms storage protocols, and personnel sleeping arrangements. He acknowledged a departmental action against himself and others but denied giving false evidence or that the accused was made a scapegoat. He maintained that the deaths were not due to a Naxalite attack. Minor suggestions regarding visibility from duty posts, exact sequences, Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 18/86 and camp logistics were put, but no material contradiction emerged affecting the substratum of his testimony.
27. PW-6, a Constable in CRPF Company F/198, was off-duty and sleeping in a room adjacent to the Kote room at the Scheduled Caste school hostel in Raipur Chaur on the night of 08/09.10.2010.
28. In his examination-in-chief, PW-6 deposed that at around 5:15 a.m. on 09.10.2010, he was awakened by gunfire, armed himself, and took position at the main gate. He saw Constable Rahul Kumar, armed with an AK-47 in hand and an INSAS slung over his shoulder, emerging from the direction of S.I. R.N. Pandey's room declaring, "Maine jo karna hai wah kar liya hai, tum log position mat lo" (I have done what I had to do, you guys should not take position). The accused then ascended to the rooftop. PW-6 noticed smoke emanating from Assistant Commandant Rohit Raj Diwana's room, entered it, and found the deceased lying drenched in blood on his bed; Inspector Ram Lal Sah was present, attempting to make a phone call and stating that the accused must have shot him. On the rooftop, in the presence of several personnel, the accused abused the deceased officers, referencing their late-night orderly room conduct "Rohit Raj Diwana tatha Pandey saheb raat mein kacchi baniyan mein orderly room lene wala kaun hota hai?" (Who are Rohit Raj Diwana and Pandey sir to take the orderly room at night in just an underwear?), Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 19/86 leading PW-6 to suspect similar harm to Pandey. He proceeded to Pandey's room and found the deceased shot and lying face down, with S.I. Hasan Ali standing outside trembling. Back on the rooftop, the accused directed that the Kote register be sent up, entered an AK-47 and ammunition in his name, and had his INSAS rifle and magazines sent down via Constable Mrityunjay Khan. PW-6, along with Constables Mandeep Singh, Virendra Kumar, and Havaldar Babu Ram, apprehended the accused on the rooftop while he was on the phone; the accused was subsequently handed over to the civil police along with the weapons. PW-6 attributed motive to an earlier argument at Kulhariya railway station over khichdi. He identified the accused in court (noting abusive language from the dock during testimony).
29. In cross-examination, PW-6 clarified details of sleeping arrangements, duty protocols, camp layout, and his subsequent career (leaving CRPF for Assam Police approximately one year later with verbal permission). He denied facing departmental action, fabricating evidence, or any impropriety in his career transition. No material contradictions emerged regarding visibility, sequence of events, or his actions post-incident.
30. PW-7, the Company Clerk (Munshi) in CRPF Company F/198, was off-duty and sleeping in the camp at the Scheduled Caste school hostel in Raipur Chaur at the material time. In his examination-in-chief, PW-7 deposed that at around Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 20/86 5:15 a.m. on 09.10.2010, he was awakened by gunfire from the north side, followed seconds later by further firing from the south (near S.I. R.N. Pandey's room). He armed himself and took position. He then heard Constable Rahul Kumar (the accused) shouting from the rooftop: "Jo mujhe karna tha kar liya hai, kisi ko mujhe koi dushmani nahi hai, tatha Rohit Raj Diwana tatha R.N. Pandey jo maine kaam tamam kar diya hai", (I have done what I had to do, I have no enmity with anyone and I have finished the work of Rohit Raj Diwana and R.N. Pandey). PW-7 proceeded to the deceased Assistant Commandant's room and observed him lying on the cot drenched in blood with AK-47 empty cartridges scattered. He then went to S.I. Pandey's room, where the deceased was similarly found in a pool of blood; S.I. Hasan Ali and 20-25 personnel were present outside, stating that the accused had shot Pandey with an AK-47 before ascending to the rooftop. PW-7 stated that the accused stole Constable Suresh Chandra's AK-47 (while the latter slept on the roof) to commit the murders and subsequently manipulated the Kote register to regularise the weapon in his name while returning an INSAS. After about 1¼ hours, personnel including Mandeep, Bhupen, Babu Ram, and Chandrakant apprehended the accused on the rooftop and handed him over to the civil police. PW-7 attributed motive to the late- night orderly room reprimand on 08.10.2010 (in groups) of 27 personnel, including the accused, for not eating khichdi, in the Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 21/86 presence of both deceased officers and Inspector Ram Lal Sah. He identified the accused in court.
31. In cross-examination, PW-7 clarified details of company strength (approximately 76 personnel), sleeping arrangements, orderly room procedures, and the absence of any formal CRPF report or interrogation by senior officers arriving post-incident. He denied facing departmental action, promotion issues, or any pressure to depose falsely. No material contradictions were elicited regarding the sequence of events, the accused's rooftop declaration, or the common talk among personnel attributing the murders to the accused.
32. The testimony of PW-7 provides further independent corroboration of the accused's open rooftop confession immediately after the gunfire, explicitly admitting to having "finished the work" of both deceased officers and disclaiming enmity with others. This spontaneous declaration, heard in the presence of multiple personnel, constitutes a reliable extra-judicial confession, consistent in content and timing with the accounts of PW-2 to PW-6. His evidence is materially corroborated by uniform testimony of prior witnesses regarding the accused's rooftop admissions, threats/assurances, and Kote register manipulation, the theft and use of Suresh Chandra's AK-47 (consistent with PW-3 and PW-4), recovery of AK-47 empties from both rooms, and the established motive of prior collective and individual reprimand Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 22/86 (khichdi refusal and late-night orderly room). In his examination- in-chief, PW-8 deposed that at around 5:15 a.m. on 09.10.2010, he was awakened by gunfire and immediately proceeded to the room of S.I. R.N. Pandey and S.I. Hasan Ali opposite his own. He found Hasan Ali shivering on his bed and the deceased Pandey lying face down, shot and bleeding. Hasan Ali informed him that Constable Rahul Kumar (the accused) had killed Pandey with an AK-47. From the rooftop, the accused, armed with an AK-47 in hand and an INSAS slung over his shoulder, was loudly declaring that he had killed Company Commander Rohit Raj Diwana and S.I. R.N. Pandey, that he had done what he intended, and that he had spared Hasan Ali. PW-8 recounted that Havaldar Anil (frightened by the initial firing) had hidden near Pandey's window, whereupon a bullet shattered the grill and grazed Anil's head. PW-8 then visited Diwana's room and found the deceased lying riddled with bullets. From the rooftop, the accused directed Inspector Ram Lal Sah to have the Kote In-Out Register sent up, stating he did not wish to spoil anyone else's job; it was established that the AK-47 belonged to Suresh Chandra. On Ram Lal Sah's orders, Kote N.C.O. M.L. Narayan sent the register via Constable Mrityunjay Khan, enabling the accused to regularise the AK-47 in his name and return an INSAS rifle with magazines. Subsequently, the accused was apprehended on the rooftop by Constables Mandeep Singh, Bhupen Gagoi, Virendra Kumar, and others, brought down, and Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 23/86 handed over to the civil police along with the AK-47 and magazine after Inspector Ram Lal Sah lodged the FIR. PW-8 proved the Duty Guard Register entries for 08/09.10.2010 in his handwriting (marked Exhibit X for identification). He identified the accused in court.
33. In cross-examination, PW-8 stated that he faced no departmental inquiry, though questioned by incoming Company Commander Hemant Kumar 2-3 days post-incident at the camp. He detailed guard deployments, camp layout, arms protocols, and personnel movements. He denied any conspiracy, falsity in evidence, or that the incident was a Naxalite attack, emphatically rejecting suggestions that the accused was framed to protect the camp's reputation or due to inaction.
34. It is ascertained from the evidence of PW 9 Mrityunjay Khan that on 9th October 2010, he had his duty on the northern side of the roof of the hostel where the CRPF personnel constituted a temporary camp. At about 5:15 a.m. he heard sound of repeated firing twice successively and immediately took his position with his firearm. Some CRPF jawans who were sleeping on the roof also woke up. Constable Suresh Chandra who was sleeping on the roof did not find his allotted AK-47 rifle and was proceeding towards the ground floor to find out his rifle. At that time the appellant appeared on the roof with AK 47 rifle in his hand and one INSAS rifle was also hanging on his shoulder. He Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 24/86 was shouting that he killed Rohit Raj Diwana and R.N. Pandey. He asked Ram Lal (PW-13) to bring the Kote In-and-Out Register (Arms Register) from Commander M. L. Narayanan. PW-9 brought the said register from M. L. Narayanan and handed it over to Rahul. Rahul then struck off the entry name of the firearm (INSAS rifle) that had been allotted to him and entered the name of "AK-47" against his name in the Arms Register. He also told PW 9 to deposit the INSAS rifle to the armoury. PW 9 received the INSAS rifle and Kote Register from the appellant and handed over them to ML Narayanan. After about one and a half to two hours, the appellant was apprehended by certain jawans and the AK-47 rifle was snatched away from him. In the meantime, the police arrived at the place of occurrence. Thereafter, the appellant was handed over to the police along with the offending arm
35. PW 10 Hasan Ali did not support the prosecution case and he was declared hostile.
36. PW 12 Anil Kumar Singh is also a CRPF personnel, he also received injury in the said incident but he also did not support the prosecution case.
37. PW-11 and PW-17 examined the seized offending weapon. PW-11, in his report, stated that the seized AK-47 rifle was in working condition and capable of firing. PW-17, on microscopic examination, linked the fired cartridge with the seized rifle; however, he was unable to determine the time of firing. Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 25/86
38. PW 14 conducted postmortem examination over the dead bodies of Rohit Raj Diwana and R.N. Pandey and submitted his report.
39. PW 16 is the Investigating Officer of this case.
40. This is all about the evidence on behalf of the prosecution.
41. After examination of the witnesses on behalf of the prosecution, the accused was examined under Section 313 of the CrPC. He denied the prosecution case and claimed his innocence.
42. From the cross-examination of the witnesses on behalf of the prosecution, it is also ascertained that on the night of 8th October 2010, there was resentment with regard to the food prepared for the dinner. About 17 members of CRPF jawans refused to take dinner and Rahul Kumar was one of them. After the deaths of Rohit Raj Diwana and R.N. Pandey, Rahul was falsely implicated with the charge of committing murder of the said two officers of CRPF as he showed his displeasure over the nature of food served in dinner on 8th October 2010.
43. Mr. Ajay Thakur, learned Advocate on behalf of the appellant submits that nobody saw the appellant taking resort to firing upon deceased Rohit Raj Diwana and R.N. Pandey. PW-13, Ram Lal, saw him fleeing away from the door of Room no. 7 towards southern side where deceased Rohit Raj Diwana and PW- 13 were sleeping. From the evidence on record, it is ascertained Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 26/86 that S.I. R.N. Pandey was sleeping in southern side room with Hasan Ali. Hasan Ali also did not see the appellant firing at S.I., R. N. Pandey. Therefore, it is urged by the learned Advocate for the appellant that there was no eye-witness of the occurrence.
44. Learned Advocate on behalf of the appellant next argues that there were in all 76 officers and jawans in the company. Some of them were sleeping in the hostel, few of them were guarding the hostel premises at different strategic points when the incident occurred. The appellant resorted to firing twice, allegedly with the help of AK-47 rifle. Surprisingly enough, nobody saw him while he was allegedly firing.
45. Mr. Thakur next submits that the offending weapon was not allotted to Rahul Kumar. The prosecution cooked up a case that the said AK-47 rifle was allotted to one CRPF Jawan named Sushil Chandra. The said Sushil Chandra was sleeping on the roof, keeping the AK-47 rifle by his side. According to the prosecution, Rahul selectively took the said rifle and committed the murder of two CRPF officers by firing.
46. PW-9, Mirtyunjay Khan stated in his evidence that he was performing his duty from 4 AM to 6 AM on the northern side of the roof of the said hostel. Suddenly, he heard the sound of "Burst firing". He immediately took position. Hearing the sounds of repeated firing, the CRPF Jawans who were sleeping on the roof after performing their duties woke up and Sushil Chandra found Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 27/86 that his AK-47 rifle was missing. Prosecution did not take any attempt to cross-examine Sushil Chandra to prove that he was allotted with one AK-47 rifle and it was missing on the date and time of occurrence. Thus, prosecution withdrew a vital witness during trial of the case.
47. Learned counsel for the appellant, Mr. Thakur, further submits that the original Arms Register has not been marked Exhibit during trial of the case. It is not disputed that the appellant was allotted with one INSAS rifle. Prosecution's version is that he took over possession of AK-47 rifle allotted to one Sushil Chandra who was sleeping on the roof keeping his firearm by his side. After committing the offence, Rahul Kumar allegedly told PW-9 to bring the Arms Register and he cut down/struck off the name of the firearm (INSAS Rifle) allotted to him to perform his duty and wrote AK-47 rifle on that place with butt number on the Register. The Investigating Officer did not take attempt to examine the entry in question with the admitted handwriting of the appellant. The defence took up a plea that the CRPF Officers and some jawans who falsely implicated the appellant, made manipulation of entries in the Arms Register to implicate the accused. Thus, the prosecution failed to prove that the appellant himself wrote the name and number of AK-47 rifle against the name in the Arms Register.
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 28/86
48. Mr. Thakur also argues that in order to implicate the appellant, prosecution manufactured a fabricated story of extrajudicial confession allegedly made by the appellant when he shouted from the roof that he had killed Rohit Raj Diwana and R.N. Pandey. He had done his job what he had to do and he would not commit any harm to any other person. It is urged by Mr. Thakur that such an extra-judicial confession is an extremely weak piece of evidence. Had the appellant made any such utterances after the incident, the informant would have mentioned the same in his fardbeyan. But such an important circumstance, amounting to a confession by the appellant, was not stated to the police by the informant in his fardbeyan. According to Mr. Thakur, this is a material omission in the FIR, and the evidence of the making of an extra-judicial confession by the appellant, as deposed by the above-named witnesses, cannot be taken into consideration.
49. Mr. Thakur also submits that the accused was arrested empty-handed. There is no assertion or positive evidence regarding the time when the offending weapon was snatched away from the alleged possession of the appellant, who handed over the offending weapon to the I.O., and when it was seized.
50. Mr. Thakur next takes us to the examination of the appellant under Section 313 of the CrPC. It is submitted by him that the examination of the accused under Section 313 of the CrPC was absolutely improper and bad in law. It was the duty of the trial Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 29/86 court to put all incriminating circumstances appearing against the appellant in the evidence adduced by the prosecution, in order to give him an opportunity to explain those circumstances. The provision contained in Section 313 of the CrPC was enacted with the salutary principle of audi alteram partem.
51. The learned Trial Judge did not even ask about any of the alleged circumstances which he took into consideration in the impugned judgment to hold the appellant guilty.
52. Lastly, Mr. Thakur submits that there were serious lapses in the investigation. Prosecution has failed to prove who made over-writings in the Arms Register. The Investigating Officer did not try to examine any independent witness. No videography was made of the place of occurrence, the arrest of the accused, or the recovery of the firearm. The Investigating Officer did not take any attempt of scientific re-construction of the incident. The custody of the weapon was not proved due to incomplete documentation. According to him, such lapses materially affect the reliability of the prosecution's case and weaken the chain of circumstances.
53. On the grounds recorded above, the learned counsel for the appellant has prayed for allowing the appeal, reversing the order of conviction and sentence passed against the appellant.
54. The learned Advocate on behalf of the State respondent, on the other hand submits that during trial, prosecution Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 30/86 satisfactorily proved the charge against the appellant. It is submitted by the learned Advocate on behalf of the State that the incident took place in the early morning of 9 th October 2010, when most of the officers and jawans of CRPF were sleeping. Some of the CRPF personnels were performing duties on the gate, roof and other strategic points of the hostel where they temporarily camped to perform Election Duties of 2010 Assembly Election. The appellant committed murder of two officers of CRPF who were sleeping by resorting to firing from a AK-47 rifle. The offence was so stealthily accomplished that nobody could see the appellant firing at the deceased Rohit Raj Diwana or R.N. Pandey. The roommate of the deceased Rohit Raj Diwana, namely, Ram Lal (PW-13), woke up on hearing the sound of repeated firing and saw the appellant fleeing away from the door of Room No. 7, where the deceased Rohit Raj Diwana and PW-13 were sleeping, with an AK-47 rifle, towards the southern side. In quick succession, he again heard the sound of 'burst firing' coming from the southern side. He rushed to the southern side of the hostel and found the appellant with AK-47 rifle in his hand running towards the staircase situated at the extreme southern side of the hostel leading to the roof.
55. The learned APP for the State further submits that at the relevant point of time, the area around Raipur Chaur was considered a disturbed area due to Naxalite movement. Most of the Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 31/86 jawans and officers initially thought that there was some Naxalite attack on the CRPF personnel. They only came to know that the appellant had committed the murder of two CRPF officers when the appellant declared from the roof of the hostel that he had killed the above-named officers and had done the job he was supposed to do. He asked the other jawans not to take position because he did not have any grudge against them.
56. The learned APP also submits that the appellant had no repentance even after commission of offence as the appellant asked PW-11 to bring "Kote Register" and made certain manipulations in the said register by cutting down/striking off the name and nature of rifle which was allotted to him and recording the name and number of AK-47 rifle against his name with the help of which he committed murder of above-named two officers. The evidence of all the witnesses of the incident was consistent and there was no material contradiction in their evidence. From the evidence of the CRPF personnel, it appears that the appellant was sitting on the roof for about two hours. He was asked to surrender, but he did not. After about two hours, some CRPF personnel managed to apprehend him and snatched away his AK-47 rifle and handed over the same to the Commandant In-Charge of Armoury (Kote Commandant). The appellant was handed over to police and the offending weapon was seized from the possession of ML Narayanan (PW-4). PW-1 proved the Seizure List and his signature Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 32/86 on the Seizure List and Inquest Reports of the deceased marked as exhibits 1, 2, 3/A and 4 to 5A respectively. Fardbeyan of Inspector, CRPF Ram Lal (PW-13) which was recorded by PW-16, i.e., S.I. Ajay Kumar, SHO Baddi OP, on 9 October 2010 at 7:30 AM, was also exhibited during trial of the case. There was no material contradiction or omission between Fardbayan and the evidence of PW-13.
57. It is further submitted by the learned APP that in his initial statement, PW-13 did not state that the appellant himself declared from the roof of the hostel that he had committed murder of Rohit Raj Diwana and RN Pandey. He had done what he required to do and there was no need for his fellow jawans to take position against him. According to the learned APP, the FIR is not an encyclopedia of incident, omission to state the said fact by the informant cannot be considered as material omission amounting to contradiction, therefore, the appellant cannot take advantage of such omission in the FIR.
58. The learned APP further submits that the prosecution was able to prove that the deceased Rohit Raj Diwana and R.N. Pandey died of gunshot injuries, as per the postmortem report prepared by PW-14, Dr. Arvind Kumar Singh. The offending weapon was also scientifically examined, and the arms expert report, as well as the ballistic report, were marked as exhibits, which proved that the firing was made by the seized weapon. Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 33/86
59. Having heard the learned counsels for the parties and on careful consideration of the entire evidence on record, we find that the testimony of PW-1 to PW-13 establishes their presence at the scene at the relevant point of time and confirms the approximate time of the incident, with gunshots hearing around 5:15 a.m. The evidence on record further proves that the appellant was apprehended from the roof of the hostel about two hours after the incident by CRPF personnel. The evidence of PW-1 further proves the formal seizure memos and Inquest Report, which are admissible in evidence and led corroboration of recovery of the firearm from the possession of the In-charge of the Armoury as well as factum of death.
60. The testimony of PW-2 is that of an ocular witness to the immediate aftermath of the incident and, crucially, to an incriminating oral statement made by the accused shortly after the gun fire. The statement attributed to the accused " मु झे जो करना था वो मै ने कर ददया, अब दकसी को कुछ नहीं करना है , तुमलोग पोजीशन कयों ले रहे हो?" amounts to an extrajudicial statement being a clear admission of having committed the act in question. The law is well-settled that an extrajudicial confession, if voluntary, cogent and corroborated by other evidence, can form the basis of conviction. The same principle has been reiterated by the Hon'ble Supreme Court in series of cases including Sansar Chand v. State of Rajasthan reported in 2010(10) SCC 604. Paragraph nos. 29 Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 34/86 and 30 of the aforesaid decision is relevant for our purpose and quoted below:-
"29. There is no absolute rule that an extra-judicial confession can never be the basis of a conviction, although ordinarily an extra-judicial confession should be corroborated by some other material [vide Thimma v. The State of Mysore - AIR 1971 SC 1871, Mulk Raj v. The State of U.P. - AIR 1959 SC 902, Sivakumar v. State by Inspector of Police - AIR 2006 SC 563 (para 41 & 42), Shiva Karam Payaswami Tewar v. State of Maharashtra - AIR 2009 SC 1692, Mohd. Azad v. State of West Bengal - AIR 2009 SC 1307.
30. In the present case, the extra- judicial confession by Balwan has been referred to in the judgments of the learned Magistrate and the Special Judge, and it has been corroborated by the other material on record. We are satisfied that the confession was voluntary and was not the result of inducement, threat or promise as contemplated by Section 24 of the Evidence Act."
61. It is found from the evidence of almost all the witnesses, except the evidence of two hostile witnesses, that the appellant told his fellow jawans immediately after the occurrence that he had accomplished the act which he was required to do, and there was no need for the jawans to take position against him.
62. It is contended on behalf of the State respondent that such utterances made by the appellant were in the nature of Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 35/86 extrajudicial which was made spontaneously in the presence of several personnel immediately after the incident, in a natural sequence of events, and is corroborated by the circumstances of the accused being armed with AK-47, his presence on rooftop duty and the motive suggested (scolding by the deceased). PW-2's presence at the main gate at the relevant time is established and unchallenged. His account of hearing gunfire, initially mistaking it for a Naxalite attack, is consistent with the environment and the testimony of PW-1, proceeding to the rooms and observing the bodies dressed in blood is natural and inspires confidence.
63. On careful perusal of the cross-examination, we find that, except for a minor discrepancy as to the time of occurrence, there was no infirmity. Such a discrepancy does not affect the substratum of his evidence. His identification of the accused in court is formal and reliable, given prior association in the said company.
64. Though PW-2 is a colleague of the deceased and the accused, and departmental proceedings were initiated over the said incident against several CRPF jawans, including PW-2, he categorically denied deposing falsely under pressure or to get rid of departmental action. No material has been brought on record to substantiate any such version or motive to falsely implicate the accused. In the absence of independent evidence, discrediting his version, his testimony cannot be discarded merely on the ground Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 36/86 of being interested witness. In this regard, the decision of the Hon'ble Apex Court in Thammaraya & Anr. vs. State of Karnataka, reported in (2025) 3 SCC 590, wherein in paragraph 27 of the aforesaid judgment Hon'ble Supreme Court observed as under:-
"27. Therefore, this material omission on the part of the investigating officer (PW 27) in not conducting a test identification parade (TI Parade) of the recovered articles, more particularly when the case of prosecution is based solely upon recoveries of these articles, has created holes in the fabric of the prosecution story, which are impossible to mend."
65. The learned Advocate for the appellant refers to some portions of the evidence of PW-3 and vehemently urges that the appellant was not allotted with the offending AK-47 rifle to perform his duties, he was allotted an INSAS rifle. However, in the "Kote Register" which is a record of allotment and return of the arms and ammunition by the jawans, there was series of manipulations as well as interpolation. It is submitted by the learned counsel for the appellant that such interpolation and manipulation in the Arms Register was done only to implicate the appellant falsely. The prosecution manufactured a story that the Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 37/86 appellant himself cut down the relevant portion where he was allotted with an INSAS rifle to perform his duty and wrote their own name and number of AK-47 rifle.
66. However, from the evidence of PW-3, it is ascertained that his own missing AK-47 rifle was recovered from the possession of the appellant. Coupled with this fact, the report of the Arms Expert (PW-17) clearly establishes that the said AK- 47 rifle was used. From the evidence of PW-3, it is further ascertained that the accused himself made manipulation in the Arms Register to exchange an INSAS rifle for an AK-47 post- incident. His presence on the rooftop with an AK-47 rifle, along with the consistent accounts of PW-2 and PW-3, lends support to the entire prosecution case.
67. On careful scrutiny of evidence of PW-3, it is ascertained that the alterations in the official Register, while raising questions about the procedural irregularities in arms accounting, do not materially impeach the core of PW-3's testimony concerning the confession and evidence on the rooftop. No evidence has been adduced to show that PW-3 colluded in post-facto tampering specifically to frame the accused. The departmental inquiry against him itself does not render his evidence unreliable in the absence of malice or coercion. The evidence of PW-3 was duly corroborated by PW-4. Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 38/86
68. The testimony of PW-5 furnishes yet another independent account of the accused's spontaneous extra-judicial confession, proclaimed from the rooftop in the presence of multiple personnel immediately after the gunfire. The accused's declaration that he had accomplished what he intended, that he alone had killed both officers, coupled with threats and the specific request for the Kote Register to shield others, constitute a detailed, voluntary and incriminating admission rendered in circumstances that makes fabrication highly improbable. An extrajudicial confession of this nature, when consistent and corroborated by independent witnesses, is substantive evidence capable of sustaining conviction. Reference may be made in this regard to the case of Gura Singh v. State of Rajasthan, reported in 2001 (2) SCC 205. In paragraph 6 of the aforesaid judgment, the Hon'ble Supreme Court observed as follows:-
"6. It is settled position of law that extrajudicial confession, if true and voluntary, it can be relied upon by the court to convict the accused for the commission of the crime alleged.
Despite inherent weakness of extrajudicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 39/86 the circumstances which tend to support the statement. Relying upon an earlier judgment in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh [AIR 1954 SC 322 : 1954 SCR 1098 : 1954 Cri LJ 910] this Court again in Maghar Singh v. State of Punjab [(1975) 4 SCC 234 : 1975 SCC (Cri) 479 : AIR 1975 SC 1320] held that the evidence in the form of extrajudicial confession made by the accused to witnesses cannot be always termed to be a tainted evidence. Corroboration of such evidence is required only by way of abundant caution. If the court believes the witness before whom the confession is made and is satisfied that the confession was true and voluntarily made, then the conviction can be founded on such evidence alone. In Narayan Singh v. State of M.P. [(1985) 4 SCC 26 : 1985 SCC (Cri) 460 : AIR 1985 SC 1678] this Court cautioned that it is not open to the court trying the criminal case to start with a presumption that extrajudicial confession is always a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession is made and the credibility of the witnesses who speak for such a confession. The Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 40/86 retraction of extrajudicial confession which is a usual phenomenon in criminal cases would by itself not weaken the case of the prosecution based upon such a confession.
In Kishore Chand v. State of H.P. [(1991) 1 SCC 286 : 1991 SCC (Cri) 172 : AIR 1990 SC 2140] this Court held that an unambiguous extrajudicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of any falsity. However, before relying on the alleged confession, the court has to be satisfied that it is voluntary and is not the result of inducement, threat or promise envisaged under Section 24 of the Evidence Act or was brought about in suspicious circumstances to circumvent Sections 25 and 26. The court is required to look into the surrounding circumstances to find out as to whether such confession is not inspired by any improper or collateral consideration or circumvention of law suggesting that it may not be true. All relevant circumstances such as the person to whom the confession is made, the time Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 41/86 and place of making it, the circumstances in which it was made have to be scrutinised. To the same effect is the judgment in Baldev Raj v. State of Haryana [1991 Supp (1) SCC 14 : 1991 SCC (Cri) 659 : AIR 1991 SC 37] . After referring to the judgment in Piara Singh v. State of Punjab [(1977) 4 SCC 452 : 1977 SCC (Cri) 614 : AIR 1977 SC 2274] this Court in Madan Gopal Kakkad v. Naval Dubey [(1992) 3 SCC 204 : 1992 SCC (Cri) 598 : JT (1992) 3 SC 270] held that the extrajudicial confession which is not obtained by coercion, promise of favour or false hope and is plenary in character and voluntary in nature can be made the basis for conviction even without corroboration."
69. The evidence of PW-5 stands circumstantially corroborated by the consistent accounts of a similar rooftop confession in the testimonies of PWs 2, 3, and 4, the post-incident manipulation of the Kote Register, recovery of the AK-47 rifle from the possession of the appellant, the recovery of empty cartridges from both crime scenes, and the reinforced motive arising out of the prior reprimand over the refusal by the appellant Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 42/86 and others to take dinner on the night of 8th October 2010, followed by prolonged scolding by the two deceased officers.
70. The careful scrutiny of the testimony of PW-6 reveals that he is a direct ocular witness to the critical incriminating circumstances. His evidence shows that he saw the accused, armed, emerging out from the vicinity of R.N. Pandey's room immediately after the gunfire, accompanied by a spontaneous declaration amounting to an admission: ' मै ने जो करना था, वो कर ललया।' Subsequent abusive reference on the rooftop explicitly linked to the grievance against the deceased, along with the accused's active participation in his apprehension, further corroborate the account. Such oral admissions made by a person in the immediate aftermath of the incident constitute a reliable extra- judicial confession when they are natural, voluntary, and consistent with the surrounding facts. We deem it apposite to refer to the case of Padala Veera Reddy v. State of Andhra Pradesh & Ors. reported in AIR 1990 SC 79 where the Hon'ble Supreme Court held that when a case rest upon circumstantial evidence, the following tests must be satisfied:-
"10. Before adverting to the arguments advanced by the learned Counsel, we shall at the threshold point out that in the present case there is no direct evidence to connect the accused with the offence in question and the prosecution rests its case Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 43/86 solely on circumstantial evidence. This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order"
71. The evidence of PW-5 receives abundant corroboration from consistent rooftop confessions and Kote Register manipulation detailed by PW-2 to PW-5, the accused's armed states, composite independent weapon exchange and threats reported uniformly, reinforced motive of prior reprimand echoed across witnesses, and the physical state of the crime scenes and presence of named personnel.
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 44/86
72. PW-6 is one of the personnel who apprehended accused along with other personnel on the roof of the hostel. The evidence of PW-7 and PW-8 also corroborates the prosecution case. The testimony of PW-8 is that of a direct ocular and auricular to pivotal incriminating events, viz, Hasan Ali's (turned hostile) immediate attribution of the shooting to the accused, the accused's open rooftop declarations, explicitly admitting the murders of both officers while sparing another, the weapon manipulation vide Kote Register and the eventual apprehension. These spontaneous admission proclaimed loudly from the rooftop and audible to camp personnel form yet another reliable extra-judicial confession, voluntary and proximate to the act carrying substantial evidentiary weight when corroborated. The same principle has been enunciated by the Hon'ble Apex Court in Pakkirisamy v. State of Tamil Nadu reported in (1997) 8 SCC 158, paragraph 8 of the said judgment is reproduced below:-
"8. Mr Murlidhar, learned counsel then contended that it is well settled that the evidence of extra- judicial confession is a weak type of evidence and ordinarily the court would be slow to accept such type of evidence. He therefore, urged that Ex. P-8 be left out of consideration. We are unable to accept this broad proposition put forth on behalf of the appellant. It is well Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 45/86 settled that it is a rule of caution where the court would generally look for an independent reliable corroboration before placing any reliance upon such extra-judicial confession. It is no doubt true that extra-judicial confession by its very nature is rather a weak type of evidence and it is for this reason that a duty is cast upon the court to look for corroboration from other reliable evidence on record. Such evidence requires appreciation with a great deal of care and caution. If such an extra-
judicial confession is surrounded by suspicious circumstances, needless to state that its credibility becomes doubtful and consequently it loses its importance. The same principle has been enunciated by this Court in Balwinder Singh v. State of Punjab [1995 Supp (4) SCC 259 : 1996 SCC (Cri) 59]. In the facts and circumstances of this case, we hold that the courts below committed no error in relying upon Ex. P-8 as the same is corroborated from several other proved circumstances."
73. As Guard Commander, with a proximate sleeping room and no admitted departmental proceedings against him, PW's-8 account is natural, detailed, and free from embellishment. Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 46/86 Extensive cross-examination of the witness failed to impeach his credibility or elicit any material contradiction. We are in agreement that no witness directly saw the accused firing at either of the deceased. However, the evidence establishes a clear and consistent chain of circumstances of the accused being seen armed with AK-
47 rifle immediately after the gunfire, fleeing/moving with the weapon and taking shelter on the roof of the hostel and making incriminating declarations. Secondly, regarding the apprehension of the appellant from the rooftop around 7:30 a.m. after the arrival of the police at the place of occurrence, the witnesses were consistent that the apprehending team comprised Hawaldar Babu Ram (PW-8), Constable Mandeep Singh, Constable Birendra Kumar, and Constable Bhupen Gagoi/Gosai (PW-6). The evidence on record also establishes that the offending AK-47 rifle was snatched or secured from the accused during apprehension.
Constable Mandeep Singh caught hold of the rifle from the front, while PW-8 and Birendra Kumar restrained the accused from behind. This fact is elicited from the evidence of PW-6 and PW-8.
Thereafter, the weapon was brought down along with the accused and handed over to PW-16, i.e., S.I. Ajay Kumar. The said fact was duly corroborated by PW-3 to PW-8. PW-9 Mirtyunjay Khan corroborated the evidence of the above-named witnesses in his examination in chief. It is true that there was some discrepancy in the evidence of PW-9 and his previous statement recorded by the Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 47/86 I.O. under Section 161 of the CrPC, however, the contradictions referred to by the learned Advocate on behalf of the appellant cannot be considered to be material one.
74. It is already stated that PW-14, Dr. Arvind Kumar Singh, conducted the Postmortem examination over the dead bodies of Rohit Raj Diwana and Rabindra Nath Pandey. The postmortem reports were marked as Exhibit 13 and Exhibit 14 respectively. The autopsy surgeon found the following injuries in the body of the deceased Rohit Raj Diwana:-
"Antemortem:- (i) one circular lacerated wound 1" diameter into chest cavity deep with inverted blackened and charred margin below scapula (left) over back of chest (wound of entry).
(ii). One lacerated wound 4"x3" into chest cavity deep with irregular inverted margin over upper part of left chest (Exit injury).
(iii) A circular lacerated wound 1" in diameter into rib deep over left infra-scapular region (wound of entry). On probing communicating to
(iv) a lacerated would 2"x1" into rib deep over right mid intra-scapular region (would of exit).
(v) A circular lacerated wound 1/2" in diameter, rib deep over Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 48/86 front of right side of chest (with inverted blackened charred margin (wound of entry). On probing communicating to
(vi) A lacerated wound 1"x1/3"x rib deep inverted in irregular margin over front of left side of chest (wound of exit).
(vii). A circular lacerated wound 1½" in diameter, into the abdominal cavity deep, with everted, blackened, charred margin, over the right side of the abdomen near the umbilicus (wound of entry).
(viii) A lacerated wound of 3"x 2"x muscle deep over left joint by the side of scrotum. On probing pointing upwards into the pelvic cavity with irregular everted margin (wound of exit).
(ix) A circular lacerated wound 1/2" diameter X abdominal cavity deep with inverted blackened charred margin below ½" of injury no.
(vii) over right side of abdomen (would of entry).
(x) A lacerated wound 1"x1"
into muscle deep over right joint, on probing pointing upwards into the pelvic cavity with irregular everted margin (wound of exit).
(xi) A circular lacerated would 1/4" diameter into muscle deep Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 49/86 with inverted charred blackened margin over left buttock (wound of entry). On probing communicating to (xii) A lacerated wound 3/4" diameter with everted irregular margin over right buttock (wound of exit).
(xiii) A circular lacerated wound ¼" in diameter with everted charred margin over left buttock (wound of entry) on probing communicating to
(xiv) A lacerated wound 3/4" in diameter with irregular everted margin over right buttock (wound of exit).
(xv) A circular lacerated wound 1/4" in diameter with inverted blackened charred margin over lateral aspect of leg knee (wound of entry). On probing communicating to (xvi) a lacerated wound with irregular everted margin 1/2" in diameter over medical aspect of left knee (wound of exit).
(xvii) A circular lacerated wound with inverted blackened charred margin ¼" in diameter into knee cavity deep over lower part of left knee (wound of entry).
(xviii) A lacerated wound 1"x1/extra2" x knee cavity deep with irregular everted margin over left poplited tissue (wound of exit).
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 50/86 (xix) A circular lacerated wound 1/4"in diameter into muscle deep over lateral aspect of right thigh with inverted blackened Charred margin (wound entry). On probing communicating to (xx) A lacerated wound 1/2" in diameter with irregular everted margin over medial aspect of right thigh (wound of exit) (xxi) Two close circular lacerated wound with inverted blackened charred margin each measuring 1/4" in diameter X bone deep at the lateral aspect of right thigh (wound of entry).
(xxii) A lacerated wound 2½"
x 1" x bone deep with irregular everted margin over medial lateral aspect of right thigh (wound of exit).
(xxiii) Three close circular lacerated wound with inverted blackened margin each measuring 1/4" in diameter on upper part of right leg (wound of entry).
(xxiv) A lacerated wound 2" x 1" x bone deep with irregular everted margin over lower 1/3 of right leg (wound of exit) (xxv) a lacerated wound 4x3x jt cavity deep over back of left elbow, upper half of wound shows everted Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 51/86 blackened charred margin and lower half with irregular everted margin join cavity.
(xvi) A lacerated wound ¼"
in diameter, with inverted, blackened, charred margins, over the lateral aspect of the terminal phalanx of the left middle finger (wound of entry).
(xvii) A circular lacerated wound with inverted blackened charred margin ¼" in diameter knee cavity deep over lower part of left knee (wound of exit).
(xxviii) A lacerated wound ½"
in diameter, with blackened, charred, inverted margins, over the right scrotum, subcutaneous deep (wound of entry).
(xxix) a lacerated wound 2"x6" x testes deep with everted margin on left scrotum (wound of exit).
(xxx) a circular lacerated wound 1/4" diameter with inverted blackened charred margin x muscle deep over upper part of left upper arm (wound of exit).
(xxxi) a lacerated wound 3/3"
in diameter x muscle deep over irregular everted margin over left Akillia.
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 52/86 All wounds oozing blood, caused by firearms."
75. The autopsy surgeon also found following injuries in the body of deceased R.N. Pandey:-
"(i) one circular lacerated wound 1/4" in diameter with inverted blackened margin over chest cavity deep over upper part of the left side of chest below cavity. (wound of entry)
(ii) a lacerated wound 1/2"
in diameter into chest cavity deep with irregular inverted margin over left infra-scapular region (wound of exit).
(iii) A lacerated wound ¼" in diameter, chest-cavity deep, with inverted, blackened, charred margins, over the upper part of the right anterior axillary fold (wound of entry).
(iv) A circular lacerated wound ½" in diameter, with irregular everted margins, over the lower part of the left side of the chest, near the left anterior axillary fold, chest-cavity deep (wound of exit).
(v) A circular lacerated
wound ¼" in diameter x rib deep over
mid third of right posterior Axillary
fold, inverted blackened charred margin (would of entry) on probity communicating to (vi) a lacerated wound ½" in diameter & irregular Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 53/86 everted margin rib deep over lower part right side of chest ancillary (wound of exit).
(vii) a lacerated wound 1/4"
in diameter chest cavity deep; inverted blackened margin over right mid axillary region (wound of entry)
(viii) a lacerated wound 1/2"
in diameter, irregular, everted margin over left sub costal region of abdomen.
(ix) a circular lacerated wound 1/4" in diameter bone deep, inverted blackened charred margin over right buttock (wound of entry)
(x) a lacerated wound 1/2" in diameter muscled deep over upper part of medial side of right thigh, irregular everted margin (wound of exit).
(xi) a circular lacerated wound 1/4" in diameter; inverted blackened charred margin over mid part of left upper arm (wound of entry).
(xii) a circular lacerated wound 1/2" in diameter; irregular everted margin over upper part of left upper arm over shoulder communicating to injury no. (xi) on probing (wound of exit), a small abrasion over post-aspect of lower part of left upper arm just above elbow."
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 54/86
76. We have also duly considered the ballistic expert's reports which corroborates firing by AK-47 rifle.
77. Learned counsel for the appellant, Mr. Thakur, refers to a decision of the Hon'ble Supreme Court in the case of Harjinder Singh @ Kala v. State of Punjab decided on 22.01.2025 in SLP (Crl.) No. 8944 of 2022 to establish that an extra-judicial confession must be accepted with great care and caution. If found reliable and convincing, an extra-judicial confession may be used as corroboration for other evidence to record conviction of the accused. The evidentiary value of extra- judicial confession is succinctly discussed in Sahadevan & Anr. v. State of Tamil Nadu reported in (2012) 6 SCC 403. It is observed by the Hon'ble Supreme Court in paragraph nos. 14 and 16 of Sahadevan (supra) as follows:-
"14. It is a settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of evidence. Wherever the court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra-judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra-judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession. In such circumstances, the court would be fully Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 55/86 justified in ruling such evidence out of consideration.
16. Upon a proper analysis of the above referred judgments of this Court, it will be appropriate to state the principles which would make an extra-judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra- judicial confession alleged to have been made by the accused:
(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.
(ii) It should be made voluntarily and should be truthful.
extra(iii) It should inspire
confidence.
(iv) An extra-judicial confession
attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
(v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.
(vi) Such statement essentially has to be proved like any other fact and in accordance with law."
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 56/86
78. In Kalinga @ Kushal v. State of Karnataka reported in 2024 (4) SCC 735, the Hon'ble Supreme Court further deliberated upon the evidentiary value of extra-judicial confession and hold thereon:-
"15. The conviction of the appellant is largely based on the extra- judicial confession allegedly made by him before PW 1. So far as an extra-
judicial confession is concerned, it is considered as a weak type of evidence and is generally used as a corroborative link to lend credibility to the other evidence on record. In Chandrapal v. State of Chhattisgarh [Chandrapal v. State of Chhattisgarh, (2023) 16 SCC 655: 2022 SCC OnLine SC 705], this Court reiterated the evidentiary value of an extra-judicial confession in the following words :
"11. .....this court has consistently held that an extra-judicial confession is a weak kind of evidence and unless it inspires confidence or is fully corroborated by some other evidence of clinching nature, ordinarily conviction for the offence of murder should not be made only on the evidence of extra-judicial confession.
As held in State of M.P. v. Paltan Mallah [State of M.P. v. Paltan Mallah,[ Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 57/86 (2005) 3 SCC 169 : 2005 SCC (Cri) 674] , the extra-judicial confession made by the co-accused could be admitted in evidence only as a corroborative piece of evidence. In absence of any substantive evidence against the accused, the extra-judicial confession allegedly made by the co-
accused loses its significance and there cannot be any conviction based on such extra-judicial confession of the co-accused."
16. It is no more res integra that an extra-judicial confession must be accepted with great care and caution. If it is not supported by other evidence on record, it fails to inspire confidence and in such a case, it shall not be treated as a strong piece of evidence for the purpose of arriving at the conclusion of guilt. Furthermore, the extent of acceptability of an extra-judicial confession depends on the trustworthiness of the witness before whom it is given and the circumstances in which it was given. The prosecution must establish that a confession was indeed made by the accused, that it was voluntary in nature and that the contents of the confession were true. The standard required for proving an extra-
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 58/86 judicial confession to the satisfaction of the Court is on the higher side and these essential ingredients must be established beyond any reasonable doubt. The standard becomes even higher when the entire case of the prosecution necessarily rests on the extra-judicial confession."
79. On the same issue the learned Advocate on behalf of the appellant further refers to the decision of the Hon'ble Apex Court in the case of Nikhil Chandra Mondal v. State of West Bengal reported in 2023 (6) SCC 605. In this report also the Hon'ble Supreme Court placed reliance on Sahadevan (supra). In Nikhil Chandra Mondal (supra), trial court did not rely upon the extra-judicial confession on the ground that recovery of blood-stained clothes of the appellant was not established in accordance with the provision of Section 27 of the Evidence Act and the recovery of knife being the offending weapon was also not proved as it was recovered from an open place accessible to all. The High Court at Culcutta set aside the order of acquittal of the accused relying on extra-judicial confession. The Hon'ble Supreme Court held that the extra-judicial confession being a weak piece of evidence cannot be accepted as the sole ground of conviction without proof of other circumstances. Thus, the order of conviction Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 59/86 passed by the High Court of Culcutta was set aside and the appellant was acquitted.
80. Next judgment referred to by the learned Advocate for the appellant is Neelam Kumari vs The State of Himachal Pradesh [2025 INSC 1013]. The Hon'ble Supreme Court held in the aforesaid judgment that extra-judicial confession is a very weak piece of evidence and in a case based on circumstantial evidence, the circumstances shall required to be proved beyond any shadow of doubt. In this regard, the Hon'ble Apex Court reiterated the principle of probity of circumstantial evidence laid down in Sharad Birdhichand Sarda v. State of Maharashtra reported in 1984 (4) SCC 116.
81. It is further contended by Mr. Thakur, that the appellant was not provided with the opportunity of explaining the incriminating circumstances allegedly appearing against him by proper examination under Section 313 of the CrPC. In support of his argument, he refers to State Naresh Kumar vs. State of Delhi reported in 2024 SCC OnLine SC 1641. Paragraph nos. 14, 15 and 16 of the above reported judgment are relevant and quoted below:-
"14. In the light of the aforesaid question posed for consideration, it is only appropriate to refer to the relevant provisions under Section 313 (1), (4) and (5).
"313. Power to examine the accused. -- (1) In every inquiry or trial, for Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 60/86 the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court--
(a) may at any stage, without previously warning the accused put such questions to him as the Court considers necessary;
(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case : Provided that in a summons-case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).
(2) ...
(3) ...
(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.
(5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section."
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 61/86
15. A bare perusal of the provisions under Section 313 CrPC, extracted above, would undoubtedly reveal the irrecusable obligation coupled with duty on Court concerned to put the incriminating circumstances appearing in the prosecution evidence against accused concerned facing the trial providing him an opportunity to explain. Sub-Section (5) of Section 313 CrPC, which was inserted under Code of Criminal Procedure (Amendment) Act, 2008 (Act 5 of 2009) with effect from 31.12.2009, would lend support to this view. It reads thus:--
"Section 313. Power to examine the accused.
***** ***** ***** ***** (5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section."
"16. In this context, the maxim "actus curiae neminem gravabit" - "the act of court shall prejudice no one", has also to be looked into. In the decision in Oil and Natural Gas Company Limited v. Modern Construction and Company, this Court held that the court has to correct the mistake it has done, rather than to ask the affected party to seek his Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 62/86 remedy elsewhere. In the context of the decisions referred above, there can be no doubt that in a charge for commission of a serious offence where extreme penalty alone is imposable in case the accused is found guilty, procedural safeguards ensuring protection of right(s) of accused must be followed and at any rate, in such cases when non-compliance of the mandatory procedure capable of vitiating trial qua the convict concerned is raised and revealed from records, irrespective of the fact it was not raised appropriately, it must be considered lest the byproduct of consideration of the case would result in miscarriage of justice. Being the Court existing for dispensation of justice, this Court is bound to consider and correct the mistake committed by the Court by looking into the question whether non-examination or inadequate examination of accused concerned caused material prejudice or miscarriage of justice. We may hasten to add here, that we shall not be understood to have held that always such a mistake has to be corrected by this Court by examining the question whether material prejudice or miscarriage of justice had been caused. In this context, the summarization of law on the subject of consequence of omission to make questioning on incriminating circumstances appearing in the prosecution evidence and the ways of Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 63/86 curing the same, if it is called for, by this Court in the decision in Raj Kumar @ Suman v. State (NCT of Delhi)7, assumes relevance.
Paragraph 16 of the said decision reads thus:
--
"17. The law consistently laid down by this Court can be summarized as under:
(i) It is the duty of the Trial Court to put each material circumstance appearing in the evidence against the accused specifically, distinctively and separately. The material circumstance means the circumstance or the material on the basis of which the prosecution is seeking his conviction;"
(ii) The object of examination of the accused under Section 313 is to enable the accused to explain any circumstance appearing against him in the evidence;
(iii) The Court must ordinarily eschew material circumstances not put to the accused from consideration while dealing with the case of the particular accused;
(iv) The failure to put material circumstances to the accused amounts to a serious irregularity. It will vitiate the trial if it is shown to have prejudiced the accused;
(v) If any irregularity in putting the material circumstance to the accused does not result in failure of justice, it becomes a curable defect. However, while deciding whether the Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 64/86 defect can be cured, one of the considerations will be the passage of time from the date of the incident;
(vi) In case such irregularity is curable, even the appellate court can question the accused on the material circumstance which is not put to him; and
(vii) In a given case, the case can be remanded to the Trial Court from the stage of recording the supplementary statement of the concerned accused under Section 313 of CrPC.
(viii) While deciding the question whether prejudice has been caused to the accused because of the omission, the delay in raising the contention is only one of the several factors to be considered."
82. Referring to the above-mentioned decision, it is submitted by the learned Advocate for the appellant, Mr. Thakur, that the alleged incident took place on 9th October 2010. Since then, the appellant is in incarceration, therefore, even assuming that the defect made by the learned trial court by not examining the appellant properly by putting all incriminating circumstances was curable, the question to be adjudicated at the present stage is as to whether the appellant can be called upon to explain the said circumstances after almost 15 years of incarceration in the correctional home for such offence. On the same point, he also Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 65/86 refers to the decisions of the Hon'ble Supreme Court in Raj Kumar @ Suman v. State (NCT of Delhi) reported in (2023) 17 SCC 95 and Ashok v. State of Uttar Pradesh, reported in (2025) 2 SCC 381.
83. In paragraph 25 of Ashok (supra), the Hon'ble Apex Court held as hereunder:-
"25. The date of occurrence is of 27-5-2009. Thus, the incident is fifteen-and-a-half years old. After such a long gap of fifteen-and-half years, it will be unjust if the appellant is now told to explain the circumstances and material specifically appearing against him in the evidence. Moreover, the appellant had been incarcerated for about twelve years and nine months before he was released on bail. Therefore, considering the long passage of time, there is no option but to hold that the defect cannot be cured at this stage. Even assuming that the evidence of PW 2 can be believed, the appellant is entitled to acquittal on the ground of the failure to put incriminating material to him in his examination under Section 313CrPC."
84. On due consideration of the evidence on record and having gone through the decision relied on by the learned Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 66/86 Advocate on behalf of the appellant while circumscribing our conclusion in the instant appeal, we can at the outset, record that this is a case of circumstantial evidence as nobody saw the appellant resorting to firing upon the deceased Rohit Raj Diwana and R.N. Pandey. In Sharad Birdhichand Sarda (supra), the Hon'ble Supreme Court was pleased to hold that for conviction based on circumstantial evidence; (i) circumstances must be fully established, (ii) facts must be consistent only with the guilt of the accused, (iii) circumstances must be of a conclusive nature, (iv) all other hypothesis except the guilt must be excluded and, (v) there must be a complete chain of evidence.
85. Keeping the above principles in mind, let us now narrate the circumstances which have been held to be proved against the appellant from the evidences adduced by the witnesses:-
(i) PW-13, Ram Lal, first heard sound of repeated firing while he was sleeping. Hearing the sound of firing, he woke up and saw appellant with a AK-47 rifle in his hand, passing away from the door of the room where PW-13 and deceased Rohit Raj Diwana were sleeping. He then saw Rohit Raj Diwana lying dead on his bed dressed in blood.
(ii) He immediately lifted his firearm and again heard the sound of repeated firing coming from the southern side of the Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 67/86 hostel. He rushed towards the southern side room and found R.N. Pandey lying dead in pool of blood in the southern side room.
(iii) Hearing the sound of firing all CRPF personnel woke up and PW-3, Suresh Chandra, who was sleeping on the roof of the hostel found that his AK-47 rifle was missing.
(iv) The witnesses being the colleagues of the appellant found him on the roof top with AK-47 rifle which was allotted to PW-3. The witnesses heard the appellant saying that he had accomplished the job which he required to do and it is not necessary for the jawans to take their positions against him.
(v) The appellant directed PW-9 to bring the Kote Register and himself struck off the entry of the INSAS rifle recorded against his name and substituted it with an entry of an AK-47 rifle along with its butt number, with the intention of shielding and saving other fellow jawans.
(vi) After about two hours of the incident the appellant was physically apprehended by Hawaldar Babu Ram (PW-8), Constable Mandeep Singh, Constable Birendra Kumar and Constable Bhupen Gagoi (PW-6) which was corroborated by PW-
3, PW-4, PW-5 and PW-7.
(vii) After apprehension, AK-47 rifle was snatched or secured from the accused, Constable Mandeep Singh caught hold of the rifle from the front while PW-8 and Birendra Kumar restrained the him from behind. After the weapon being snatched Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 68/86 from the possession of the appellant, both the appellant and the offending weapon were brought down and handed over to the custody of PW-16, Ajay Kumar. The postmortem of the deceased established that Deceased Rohit Raj Diwana received as many as 16 gunshot injuries on his person and the deceased R.N. Pandey received as many as 12 gun shot injuries on his person.
(viii) The said gunshot injuries were incriminating by the bullets capable of firing from AK-47 rifle.
(ix) From the Report of the Ballistic Expert (PW-17), it was ascertained that the seized weapon was used for firing.
86. On the basis of the above-mentioned evidence, the trial court held the accused guilty and convicted him.
87. On careful scrutiny of the evidence on record, it is found that during the relevant point of time when one Company F/198 of CRPF came to perform Assembly Election Duty, the locality was considered as a disturbed area due to the atrocities by naxalites. Hearing the sound of 'burst firing' most of the witnesses who are CRPF personnel thought that they were attacked by naxalite insurgents. It is also found from the evidence that immediately after hearing the sound of repeated firing the personnel on guard took their position and the officers and other personnel of the CRPF who were sleeping woke up and about to take position with their arms and ammunition. Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 69/86
88. On careful scrutiny of the evidence, it is found that the informant, PW-13, i.e., Ram Lal for the first time saw the appellant with an AK-47 rifle in his hand running away through the door of Room No. 7 where deceased Rohit Raj Diwana and Ram Lal were sleeping and then found Rohit Raj Diwana lying dead receiving gunshot injuries, drenched in blood. Immediately, he heard sound of 'burst firing' coming from the southern side of the hostel. He rushed towards the southern side of the hostel and found S.I. R. N. Pandey lying dead, receiving gunshot injury. He also saw the appellant running towards the roof of the hostel following the southern side staircase with AK-47 rifle in his hand. From the evidence on record, it is ascertained that the CRPF personnel were not attacked by naxalite insurgents. All the witnesses who belonged to the force stated on oath that the appellant committed murder of the above-mentioned two officers of the CRPF, their evidence was all through consistent and there is no contradiction in their evidence and their initial statement recorded under Section 161 of the CrPC.
89. It is true that the FIR was lodged at 10:30 a.m. on 9 th October 2010, under Section 302/307 of the IPC and Section 27 of the Arms Act on the basis of a fardbeyan recorded at 7:30 a.m. It is on record that after the incident the informant intimated the matter to the higher officials of the Force by mobile phone and thereafter, he informed the police. The police officer attached to Baddi Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 70/86 Outpost being the nearest police outpost to the place of occurrence came to the spot and recorded the fardbeyan of PW-13 and forwarded the same to the S.H.O. Shivsagar P.S. for lodging FIR under Section 154 of the CrPC. After the fardbeyan reached the Shivsagar police station, FIR was registered at about 10:30 a.m.
90. Prior to recording the fardbeyan, the witness account is that the accused/appellant was apprehended by the fellow jawans, AK-47 rifle was snatched away from his possession and handed over to the police. The entire chain of event does not create any suspicious circumstance about appellant's taking over possession of the AK-47 rifle which was allotted to PW-3, Suresh Chandra, who was sleeping on the roof, keeping the said AK-47 rifle by his side. Witnessing the appellant by PW-13 through the door of Room No. 7 towards the southern side, hearing the sound of 'burst firing' coming from the southern side, seeing the dead body of R.N. Pandey in southern side room as well as seeing Rahul Kumar running towards the roof of the hostel.
91. CRPF jawans who deposed during trial of the case stated in the same tune that the appellant was shouting and preventing his colleagues from taking position against him by saying that he had accomplished the act which he required to do and he killed both Rohit Raj Diwana and R.N. Pandey.
92. The learned Advocate on behalf of the appellant vehemently urged that the trial court accepted such evidence Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 71/86 adduced by the witnesses as extra-judicial confession and held the accused guilty. It is submitted by him that the extra-judicial confession is a very weak piece of evidence and such a confession cannot be the sole basis of conviction.
93. We are in agreement with such submission made by the learned Advocate for the appellant. We also find that the said fact of making statement by appellant in the nature of confession was not stated by PW-13 in his fardbeyan. Under such circumstances, the question that arises for consideration is as to whether it is open for this Court to hold that the prosecution failed to prove the said circumstance.
94. It is needless to say that the FIR is not the encyclopedia. It is no less res integra that FIR does not contain minute details of the incident. However, omission of a vital fact in the FIR amounts to contradiction but such contradiction is applicable only against the maker of the FIR. Such contradiction under the facts and circumstances of the case cannot vitiate entire prosecution's case. During investigation of the case, the statement of CRPF personnel who deposed in the case was recorded by the I.O. They stated that the appellant was shouting that he had killed Rohit Raj Diwana and R.N. Pandey, he had accomplished the work which he required to do and there was no necessity for the guards to take position against him, i.e., the appellant. From the evidence on record, it is found that the appellant made such statement immediately after the Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 72/86 occurrence. Even if the said statement is not accepted as extra- judicial confession, such evidence is admissible under Section 6 of the Evidence Act on the principle of res gestae. It is needless to say that the test of admissibility of evidence as part of res gestae is:-
(a) Whether the act, declaration, or exclamation, is so intimately interwoven with or connected to the principal fact or event it characterizes as to be recorded as part of the same transaction--i.e., the transaction itself; and
(b) also, whether it clearly negates any premeditation or purpose to manufacture testimony. The statement of Rahul Kumar, as deposed to by the witnesses, was made immediately after the commission of the murder of two officers of the Force. After committing murder by gunshot injury, he rushed to the roof of the hostel and told his fellow members of the Force that he had accomplished his act which he required to do. Such utterances were made loudly by the appellant within closest proximity of time act the proximity of place in continuation of the same action to state the purpose of his act or desire. Therefore, such evidence is very much admissible following illustration 'a' of Section 6 of the Evidence Act. Thus, we hold the statement made by Rahul Kumar immediately after the fardbeyan occurrence admitting his action is a relevant fact and admissible in evidence on the principle of res gestae provided in Section 6 of the Evidence Act.
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 73/86
95. From the evidence of PW-3, Suresh Chandra, it is found that after performing his duty he was sleeping on the roof of the hostel keeping his AK-47 rifle by his side. Hearing the sound of firing and hue and cry, he woke up and did not find his AK-47 rifle. He immediately found the said rifle in the hand of the appellant. The said rifle was seized from the possession of the appellant. On closest perusal of the relevant entries in the Arms Register, it found that PW-3 was allotted with the A.K. 47 rifle. Subsequently, such allotment of AK-47 rifle against the name of PW-3 was struck down and it was entered against the name of Rahul Kumar. There are manipulations/interpolations in the Arms Register. The witnesses said that it was done by the appellant sitting on the roof of the hostel asking PW-9, Mritunjay Khan to bring Arms Register (Kote Register) and making entry of AK-47 rifle in his name cutting down allotment of INSAS rifle against his name. The witnesses stated on oath that it was done by Rahul Kumar to shield other colleagues.
96. It is important to note that such act was done even for short period of the incident, at that point of time also, the appellant did not want to falsely implicate his fellow members of the Force. He declared himself as the assailant not only by shouting but also making necessary interpolation in the Arms Register. This act forms a part of the same transaction where immediately after the occurrence, the appellant did not want to shield himself but Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 74/86 decided to take entire burden on his shoulder declaring that he killed the above-mentioned two officers of CRPF. Therefore, the above circumstances makes a chain of evidence where there is no missing link.
97. Coupled with the said fact, the postmortem reports as well as the ballistic expert's reports also prove that both the deceased died receiving injuries by bullets fired from a firearm. It is already recorded that the autopsy surgeon found as many as 16 number of bullets injuries in person of Rohit Raj Diwana and 12 numbers of gunshot injuries in person on R.N. Pandey. The injuries were inflicted by an automatic rifle because such huge numbers of injuries cannot be inflicted by an ordinary firearm or revolver. The injuries were inflicted by automatic firearm. failure on the part of
98. The forensic authorities examined the seized AK-47 rifle and opined that fires were made by the said rifle.
99. Thus, the chain of events in the instant case is so complete that no link is missing, and it is wholly inconsistent with the innocence of the appellant. On the contrary, it is fully consistent with the appellant's guilt.
100. Now comes the last question with regard to the failure on the part of the learned Principal Judge to properly examine the appellant under Section 313 of the CrPC by asking him all the incriminating circumstances appearing against the appellant from evidence of the witnesses on behalf of the prosecution. For better Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 75/86 appreciation of the issue, the questions asked to the appellant under Section 313 of the CrPC and answer thereto are reproduced below:
"प्रश- आप गववाहहों ककी गववाहकी ससुनवा हह? उत्तर- जकी हहाँ ।
प्रश- आप पर आररोप हह ककी आप ददिननांक 09.10.2010 करो समय 5.15 बजज अ. दन. रदववद्र नवाथ पनांडजय वरो कवपनकी कमनांडर ररोदहत रवाज दिकीववानवा करो ए.कज.47 रवाइफल सज ब्रस्ट फवायर कर गरोलकी मवारकर हत्यवा कर ददियवा दजससज दिरोनहों ककी ममृत्यसु हरो गयकी? उत्तर- जकी नहहीं।
प्रश- आप पर आररोप यह भकी हह ककी जब आप रदववद्र नवाथ पनांडजय करो ए.कज.47 रवाइफल सज ब्रस्ट फवायर कर गरोलकी मवार रहज थज वहकी गरोलकी रूम कज दिदक्षिणकी दखिड़ककी कज एवगल सज पवारकर वहनां खिड़ज हवलदिवार अदनल कसु मवार दसवह कज दसर कज बवाहरकी दहस्सवा सज लगतवा हआ सु बवाउवडकी ववाल ममें टकरवायवा दजससज हवलदिवार अदनल कसु मवार दसवह करो दसर ममें गरोलकी लगवा दजससज वरो जख्मकी हरो गए?
उत्तर- जकी नहहीं।
प्रश- आपकरो सफवाई ममें क्यवा कहनवा हह? उत्तर- ममैं दनदिर्दोष हह । मसुझज गलत रूप सज फवसवायवा गयवा हह। "
101. In the case of Naresh Kumar (supra), the learned counsel for the appellant argued that before the Hon'ble Supreme Court that the trial court failed to ask questions under Section 313 of the CrPC on two incriminating circumstances appearing against the appellant in prosecution, viz, exhortation to do away with their lives (aaj inko jaan se hi khatam karde) and the evidence that the 'appellant had caught hold of the deceased Arun Kumar to enable Mahinder Kumar to Stab him repeatedly with knife' and they formed the foundation for holding that the appellant had shared Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 76/86 common intention with the first accused and ultimately, for holding the appellant guilty with the aid of Section 34 of the IPC, for the offence under Section 300, IPC, punishable under Section 302 of the IPC.
102. In paragraph nos. 9 and 13 of the aforesaid judgment, it was observed by the Hon'ble Supreme Court as hereunder:-
"9. In view of the aforementioned core contentions, we are of the considered view that we need to consider the other grounds taken up in the appeal on the merits only if the appellant could not succeed based on non- examination under Section 313, Cr.P.C., qua the appellant. We may consider any other relevant aspect, circumstance or evidence if we find that it is required for a proper consideration and appreciation of the abovementioned core contention.
13. This position takes us to the next question as to whether in such circumstances the contention based on non-
examination/inadequate examination under Section 313, Cr.P.C., causing material prejudice qua the appellant can be maintained at this stage. In this context, it is only appropriate to refer to the decision of this Court in Shobit Chamar v. State of Bihar. It was held therein that where the plea as to non- compliance of the provisions of Section 313, Cr. P.C., was raised for the first time Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 77/86 before the Supreme Court, in case no prejudice had resulted to the accused was proved, the trial could not be held as vitiated. In that case, though the non-compliance was taken for the first time before the Supreme Court, the records showed that the relevant portion of the statement of witnesses were put to the accused in examination under Section 313, Cr.P.C., and, thereupon, the plea was rejected. It is to be noted that was also a case of murder."
103. It is needless to say that this Court is the first Court of Appeal where the appellant has raised the issue of improper examination of the appellant under Section 313 of the CrPC causing prejudice to him because he failed to explain the alleged incriminating circumstances appearing against him.
104. At this stage, it is proper to refer to the relevant provision under Section 313 of the CrPC.
"313. Power to examine the accused.--
(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court--
(a) may at any stage, without previously warning the accused put such questions to him as the Court considers necessary;
(b) shall, after the witnesses for the prosecution have been examined and before he Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 78/86 is called on for his defence, question him generally on the case:
Provided that in a summons-case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause
(b).
(2) No oath shall be administered to the accused when he is examined under sub- section (1).
(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.
(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.
[(5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section.]"
105. Thus, Section 313 of the CrPC casts an irrecusable obligation coupled with duty on the trial court to put the incriminating circumstances appearing in the evidence against the Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 79/86 accused, providing him an opportunity to explain the incriminating circumstances appearing against him. In the instant case, the trial court failed and neglected to ask incriminating circumstances appearing against the appellant while examining under Section 313 of the CrPC.
106. In Naresh Kumar (supra), the Hon'ble Supreme in paragraphs nos. 21 to 27 held as hereunder:-
"21. We have already held that whether non-
questioning or inadequate questioning on incriminating circumstances to an accused by itself would not vitiate the trial qua the accused concerned and to hold the trial qua him is vitiated it is to be established further that it resulted in material prejudice to the accused. True that the onus to establish the prejudice or miscarriage on account of non-questioning or inadequate questioning on any incriminating circumstance(s), during the examination under Section 313, Cr. P.C., is on the convict concerned. We say so, because if an accused is ultimately acquitted, he could not have a case that he was prejudiced or miscarriage of justice had occurred owing to such non-questioning or inadequate questioning.
22. In the light of the above view of the matter, we are inclined to consider the further question whether the non-questioning on the aforesaid twin incriminating circumstances to the appellant during his examination under Section 313, Cr. P.C., had caused material prejudice to him. The decision of this Court in State of Punjab v. Swaran Singh, constrain Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 80/86 us to consider one another factor while considering the question of prejudice. In Swaran Singh's case (supra), this Court held that where the evidence of the witnesses is recorded in the presence of the accused who had the opportunity to cross examine them but did not cross examine them in respect of facts deposed, then, omission to put question to the accused regarding the evidence of such witnesses would not cause prejudice to such an accused and, therefore, could not be held as grounds vitiating the trial qua the convict concerned. We have already found that Anil Kumar (PW-7), Smt. Prem Devi (PW-8), Mrs. Madhu (PW-19) and Anand Kumar (PW-22) have deposed about the said circumstances. A scanning of their oral testimonies, available on record, would undoubtedly reveal that on both the points, on behalf of the appellants they were cross examined.
23. The position, as above, would take us to the last question whether material prejudice was caused to the appellant on account of non-questioning him on the aforesaid incriminating circumstances and thereby depriving him an opportunity to explain. This question can better be considered by referring to paragraph 31 of the judgment of the Trial Court, which virtually got confirmance from the High Court under the impugned judgment. It reads thus:--
"31. As far the part played by accused Naresh is concerned, this has come in the evidence of PWs that he (Naresh) is the man, who called his brother Mahinder and exhorted "Mahender came out and kill them today" and thereafter his taking part in the incident, by catching hold of deceased Arun Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 81/86 Kumar, clearly goes to show the common' intention of the two, i.e. Naresh and Mahinder and even the Learned Defence Counsel, cannot be benefited from the above noted authorities."
24. It is evident from the afore-extracted paragraph from the judgment of the Trial Court that the said conclusion that appellant had shared the common intention to commit murder of the deceased Arun Kumar was based only on the aforesaid two incriminating circumstances which were not put to the appellant while being questioned under Section 313, Cr. P.C. When the very charge framed against him, as referred as above, would reveal that there was no charge of commission of an offence under Section 300 IPC, punishable under Section 302, IPC, simplicitor against the appellant whereas the said charge thereunder with the aid of Section 34, IPC. In such circumstances, when the finding of common intention was based on the twin incriminating circumstances and when they were not put to the appellant while he was being questioned under Section 313,Cr. P.C., and when they ultimately culminated in his conviction under Section 302, IPC, with the aid of Section 34, IPC, and when he was awarded with the life imprisonment consequently, it can only be held that the appellant was materially prejudiced and it had resulted in blatant miscarriage of justice. The failure as above is not a curable defect and it is nothing but a patent illegality vitiating the trial qua the appellant.
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 82/86
25. Once, the upshot of the discussion is above, we do not think it proper to deal with the innumerable grounds raised by the appellant, not only because it has become unnecessary but also such consideration may adversely affect the co- accused whose appeal was also decided under the very same common judgment impugned in this appeal.
26. As noticed hereinbefore, the incident in question occurred more than 29 years ago and the appellant had already undergone incarceration more than 12 years. In such circumstances, if he is again subjected to examination under Section 313, Cr.P.C., it would cause further prejudice to him in view of the patent illegality occurred qua the appellant. Hence, the conviction of the appellant could not be sustained.
27. For the aforesaid reasons, the appeal must succeed. Accordingly, the impugned judgment of the trial Court and the High Court are set aside qua the appellant. We make it clear that this judgment would not disturb the conviction of the other accused. We also make it clear that this observation shall not be taken as confirmation of his conviction as it is a matter which may be dealt with in an appeal, if any, filed by him. The appellant herein stands acquitted of the offences alleged against him. If his detention is not required in connection with any other case, he shall be released, forthwith."
107. In Raj Kumar @ Suman (Supra), the Hon'ble Supreme Court held that if a point in the evidence is considered important Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 83/86 against the accused and the conviction is intended to be based upon it, then it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it, if he so desires. Thus, failure to put material circumstances to the accused amounts to a serious irregularity and it will vitiate the trial if it is shown to have prejudiced the accused. However, if any irregularity in putting the material circumstance to the accused does not result in failure of justice, it becomes a curable defect under Section 465 of the CrPC. But while deciding whether the defect can be cured, one of the considerations will be the passage of time from the date of the incident. In case, where such irregularity is curable, even the appellate court can question the accused on the material circumstance which is not put to him and, further, in a given case the case can be remanded to the trial court from the stage of recording the supplementary statement of the accused under Section 313 of the CrPC while deciding the question whether prejudice has been caused to the accused because of the omission. The delay in raising the contention is only one of the several factors to be considered. In this case, the Hon'ble Supreme Court held that even assuming that the defect or irregularity was curable, the question as to whether today, the appellant/accused could be called upon to explain the said circumstance. More than 27 years have passed since the date of the incident. Considering the passage of time, it will be unjust now at Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 84/86 this stage to remit the case to the trial court for recording further statement of the appellant under Section 313 CrPC. In the facts of the case, the appellant cannot be called upon to answer something which has transpired 27 years back. There is one more aspect of the matter which persuaded the Supreme Court not to pass an order of remand. The said factor is that the appellant has already undergone incarceration for a period of 10 years and 4 months.
108. On the basis of such circumstances, the Hon'ble Supreme Court held that the conviction of the appellant was vitiated in the facts of the case, the option of remand will be unjust and, accordingly, the appeal was allowed and the order of conviction and sentence was set aside. The same principle was laid down in Ashok Kumar (supra)
109. Though in the instant case, we have come to a finding that the evidence on record amply establishes the circumstances, irresistibly pointing at the guilt of the appellant, improper examination of the appellant under Section 313 of the CrPC vitiates the trial. It is within our knowledge that the incident took place on 9th October 2010 when the appellant committed murder of two innocent officers of CRPF. At the same time, we are not unmindful to note that the appellant was arrested on the very date of commission of offence and he is under incarceration for more than 15 years.
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 85/86
110. Considering such aspect of the matter, we do not like to remand the case back to the trial court for re-examination of the accused under Section 313 of the CrPC.
111. We are conscious of our decision because we have decided the case on merit and on careful examination of witnesses, we have found that the prosecution was able to prove all the circumstances forming a chain without missing any link consistent with the guilt of the accused. Therefore, we are of the view that for the error committed by the learned Trial Judge in examining the appellant/accused properly under Section 313 of the CrPC requiring him to explain all the incriminating circumstances appearing against him, the appellant cannot be straightaway acquitted of the charge, therefore, while confirming the impugned judgment of conviction and sentence, we direct the appellant to move before the State Sentence Review Board, Bihar, by filing an application for premature release.
112. Further, if such application is filed, the State Sentence Review Board shall decide the question dispassionately in its proper perspective considering the fact that the accused/appellant is in incarceration for more than 15 years and in case of Life Imprisonment also, a convict is entitled to make such prayer for premature release after 14 years of his custody.
Patna High Court CR. APP (DB) No.331 of 2018 dt.18-02-2026 86/86
113. With the above observation, the instant Criminal Appeal (DB) No. 331 of 2018 is disposed of on contest. However, there shall be no order as to cost.
(Bibek Chaudhuri, J) I agree.
Dr. Anshuman, J:
(Dr. Anshuman, J) suraj/-
AFR/NAFR NAFR CAV DATE 12.01.2026 Uploading Date 18.02.2026 Transmission Date 18.02.2026