Surprised by support for the murder acccused by Ashok Mishra, S.P., Samastipur, Bihar, Supreme Court asks him to explian his stand

In Madhuri Devi vs. Arjun Das @ Kariya & Anr. Etc. (SLP (Crl.) No(s).2126-2130/2025), the counsel of the petitioner drew the attention of the Supreme Court's Division Bench of Justices Ahsanuddin Amanullah and Prashant Kumar Mishra towards the counter affidavit dated April 4, 2025, filed by respondent no.2-State of Bihar, which has been affirmed by the Superintendent of Police, Samastipur, Bihar. Special reference is made to paragraph nos.13, 14 and 15 of the counter affidavit filed by the respondent no.2-State. The other respondents are: The State of of Bihar,  Nilendra Giri, Himanshu Rai, Sunil Kumar and and Sumit Kumar.

The petitioner's counsel contended that the Superintendent of Police of Samastipur district supported the accused and the impugned order, forgetting that it was an FIR filed by the State, which resulted in conviction after due investigation and prosecution.

Supreme Court expressed its surprise at the blatant stand in the affidavit filed by the Superintendent of Police of the district in support of the accused. The Court was constrained to make Ashok Mishra, who had affirmed the affidavit dated April 4, 2025 filed in the present case and was holding the post of Superintendent of Police, Samastipur, Bihar, to be impleaded as respondent no.3 in all the matters.

The case arose out of impugned 10-page long final order dated December 11, 2024 passed by the Patna High Court's Division Bench of Justices Ashutosh Kumar and Rajesh Kumar Verma in Himanshu Rai @ Himanshu Ray @ Himanshu Kumar & Ors vs The State of Bihar (2024). The High Court's final order authored by Justice Ashutosh Kumar had suspended the sentences of the appellants during the pendency of the appeal and directed them to be released on bail, during the pendency of the appeal.

Supreme Court's order dated May 19, 2025 reads: "Let the newly added respondent no.3 be served through the learned counsel for respondent no.2-State. A personal affidavit shall be filed by the newly added respondent no.3, explaining as to under what circumstances, such stand was taken by him in the affidavit in the present case. List on 01.08.2025."

All the appeals filed by Himanshu Rai, Sunil Kumar, Nilendra Giri, Arjun Das @ Kariya and Sumit Kumar were heard together by the High Court on the issue of suspension of sentence. 

The appellants were convicted under Sections 302/34 read with Section 120B of the Indian Penal Code and Section 27(3) of the Arms Act, 1959 vide judgment dated August 13, 2024 passed by the Additional Sessions Judge-V, Samastipur in two Sessions Cases which arose  out of Musrigharai P.S. Case No. 97 of 2021. By order dated 20.08.2024, they were sentenced to undergo imprisonment for life and to pay a fine of Rs. 10,000/-each under Section 302/34 read with Section 120B of the IPC.

Sunil Kumar, the appellant/ was further sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- under Section 27(3) of the Arms Act, 1959. In default of payment of fine, to further suffer S.I. for three months.

The High Court's order records that one Sashinath Jha, an up-Mukhiya of village Udapatti is said to have been killed by the appellants and others while he was returning after conducting a panchayati for a dispute between one Horial Sah and Arvind Sah. Afore-noted Horil Sah and Arvind Sah have not been examined at the Trial. The occurrence of murder was witnessed by Chandan Kumar Choudhary, the personal driver of the deceased (P.W. 1). Shortly after the occurrence, Nabonath Chaudhary and Koushal Kumar Jha, associates of the deceased (P.Ws. 2 and 3), also arrived. The occurrence had taken place some times on 06.08.2021 at about 10:30 in the morning. The FIR has been lodged by the wife of the deceased, viz., Madhuri Kumari (P.W. 4), who had been elected as Mukhyia of the panchayat recently. Before she took over, the deceased was the Mukhiya of the panchayat for the last fifteen years. P.W. 4 had come to know about the occurrence and the assailants from aforesaid Chandan Kumar Choudhary, Nabonath Choudhary and Kaushal Kumar Jha (P.Ws. 1, 2 and 3 respectively) on August 6, 2021 only. However, the fardbeyan was registered on August 8, 2021 at about 04:00 P.M. in the house of Madhuri Kumari (P.W.4) The counsel for the appellants had submitted that this alone makes the prosecution case highly doubtful. It was argued that P.W. 4 is not a pardanashin lady, whose explanation that her two sons were away and therefore the case was lodged after two days of the occurrence, is not acceptable as any valid reason for the delay in lodging the case. The post-mortem examination was conducted on the dead-body on August 7, 2021 at about 07:23 A.M. There was a delay in bringing the dead-body to the morgue as well. There is no evidence on record of any treatment having been meted out to the deceased. The story narrated by P.W. 4, therefore, prima facie, appears to be an incorrect version of the occurrence as according to her, she had accompanied the deceased while he was still alive to hospital. Where and when was the deceased treated; what happened when he was declared dead; and the reason for the delayed post-mortem examination, make the prosecution case further doubtful. Some of the appellants were named in the first instance, but since the FIR was registered after two days of the occurrence; the informant being the wife and serving Mukhiya of the Gram Panchayat and such statement having been recorded only after the post-mortem examination which revealed that the deceased had received six gun-shot wounds, the appellants have underscored that the accusation is doubtful.  Another aspect which was highlighted by the appellants was that the Doctor, who conducted the post-mortem examination, candidly admitted that he had no experience of conducting the post-mortem examination and had no idea about forensics of any kind. It was argued that the evidence of such a Doctor would not be admissible as a valid piece of evidence under the Indian Evidence Act, 1872. Advocate for the informant ans the APP submitted that P.W. 4 has never claimed herself to be an eye-witness to the occurrence. She came to learn about it only from P.Ws. 1, 2 and 3, more
particularly P.W. 1, who has withstood the test of cross-examination. The afore-noted witness, viz., Chandan Kumar, the personal driver of the deceased, has given a vivid description of the assailants and the person who came up to the deceased and shot him from close quarters.

The High Court had concluded: "After having examined the records of this case, though sketchily, we are of the view that the delay by the wife of the deceased, a sitting Mukhiya, in reporting the matter, has provided sufficient space for the appellants to argue that they have been falsely implicated, perhaps because of political motives."