Ajay Kumar Thakur's cogent arguments makes the High Court reverse orders by Justice Rakesh Kumar in 2018, Justice Ashwani Kumar Singh in 2021 and Justice Arvind Srivastava in 2024, and to set aside untenable and indefensible judgement of conviction of 2018 by the judge from the Araria Trial Court.
In Vijay Kumar Yadav @ Vivek Kumar @ Golu vs. The State of Bihar (2025), Patna High Court's Division Bench of Justices Bibek Chaudhuri and Dr. Anshuman delivered a 15-page long judgement dated December 17, 2025, wherein, it concluded:" 31. In the instant case, the I.O. did not collect any certificate from IDBI Bank to prove the SMS sent to the mobile phone of the deceased from service provider. Certification of CCTV footage electronically generated money receipt from ATM swipe machine was also not obtained from the concerned authority by the I.O. Prosecution did not take any attempt to examine the shop owner of Maa Lakhi Jewelers. The appellant was not identified by any independent witness except the I.O. 32. For the reasons stated above, we have no other alternative but to hold that the trial court illegally without considering the basic requirement of the Evidence Act and the manner in which the charge can be proved held the accused guilty for committing offence and convicted and sentenced him accordingly. For such gross mistake, the accused unnecessarily remained in custody for more than 7 years. As a result, the instant appeal is allowed. 33. The judgment of conviction dated 11.04.2018 and order of sentence dated 17.04.2018 is hereby set aside. Let the appellant be released forthwith in connection with Sessions Trial No. 203 of 2017 arising out of Araria P.S. Case No. 856 of 2017, if not required in other case."
The appellant was in custody approximately for more than 7 years while suffering sentence. The criminal appeal was filed on May 29, 2018 and registered on June 4, 2018.
Justice Chaudhari who authored he judgement observed: "3. We are not constrained to note that this case is a classic example of conviction upon inadmissible evidence by the learned trial Judge. Subsequent to the filing of the appeal, the appellant preferred a series of applications for suspension of sentence and bail, but his prayer was constantly rejected by the High Court, which also relied on inadmissible evidence."
Notably, although Y.C. Verma, senior advocate had submitted before the Division Bench of Justices Rakesh Kumar and Arvind Srivastava on August 9, 2018 that the case was completely based on circumstantial evidence without any proof of completion of chain and, as such, it was not a case for conviction, however trial Judge had incorrectly passed Judgement of conviction and sentence. Accordingly, he had submitted that it was a fit case for passing order for suspension of sentence and granting bail to the appellant during pendency of the appeal. In his 3-page long order dated August 9, 2018, Justice Kumar had concluded:"Besides hearing learned counsel for the parties, we have also cursorily examined the evidence on record and after going through the same, it is evident that during investigation, the appellant was apprehended and his confessional statement was recorded by the police under Section 161 of the Code of Criminal Procedure. The confession led to recovery of certain facts, which were only within the knowledge of the appellant. His confession also led to recovery of ATM Card of the deceased and, thereafter, it was noticed that ATM Card was subsequently used and amount was transferred. The learned trial Judge considered that it was completion of chain of circumstantial evidence and, thereafter, he passed the judgment of conviction and sentence. The appellant was solely tried and held guilty. In view of the facts and circumstances, we are not inclined to pass favourable order. Accordingly, the prayer for suspension of sentence and grant of bail stands dismissed."
Notably, the Division Bench of Justices Ashwani Kumar Singh and Arvind Srivastava passed a 2-page long order dated February 2, 2021 reiterating the order by Justice Kumar. Justice Singh who authored the order, had concluded:"By way of the instant interlocutory application preferred under section 389(1) of the Code of Criminal Procedure, the appellant, who has been convicted for the offences punishable under Sections 302 read with section 34 and 201 of the Indian Penal Code, has renewed his prayer for suspension of sentence and grant of bail during pendency of the appeal. A similar prayer made on his behalf was earlier rejected by this Court vide order dated 09.08.2018. For the reasons assigned in the order dated 09.08.2018, since there is no changed circumstance, we are not inclined to take a different view of the matter. Accordingly, his prayer for suspension of sentence and grant of bail is rejected.Interlocutory application stands rejected."
The Division Bench of Justices Arvind Srivastava and Sunil Dutta Mishra passed a 2-page long order dated January 3, 2024 reiterated Justice Kumar's order when the appellant prayed for suspension of sentence and grant of bail during the pendency of appeal. The counsel for the appellant had submitted that the prayer for bail of the appellant was earlier twice rejected by this Court. Now the fresh ground for bail of the appellant was that he was languishing in custody since December 28, 2016, as such he remained in custody for more than seven years and there was no likelihood of the appeal to be taken up for hearing in near future. The Additional Public Prosecutor appearing on behalf of the State opposed the prayer of the appellant by contending that the prayer for bail of the appellant was earlier twice rejected by this Court on merit. He also submitted that although the appellant remained in custody for more than seven years but it came in evidence that the confession of the appellant led to recovery of certain facts which were only within the knowledge of him. His confession also led to recovery of ATM Card of the deceased and thereafter, it was noticed that ATM Card was subsequently used and amount was also transferred. Justice Srivastava who authored the order, had concluded:"As such, the prayer for bail of the appellant is not fit to be reconsidered. 5. Having considered the facts and circumstances of the case, the submissions advanced on behalf of the parties and the materials available on record, this Court is not inclined to grant bail to the appellant. His prayer for bail is again rejected."
Justice Chaudhary had reserved the judgement on December 9, 2025. The compelling submission by Ajay Kumar Thakur, counsel for the petitioner on December 9 when he concluded the argument and made the Court change it's mind and reverse orders by Justice Rakesh Kumar in 2018, Justice Ashwani Kumar Singh in 2021 and Justice Arvind Srivastava in 2024.
It is evident that it took the High Court over seven years to appreciate the argument of the counsel of the petitioner.
The judgement was delivered upon hearing an appeal under Section 374 (ii) of the Code of Criminal Procedure filed by the convict assailing the judgment of conviction dated April 11, 2018 and the order of sentence dated April 17, 2018 passed by the Additional Sessions Judge IIIrd Court, Araria in a Sessions Trial of 2017. The case arose out of Araria P.S. case of 2017 whereby and whereunder the appellant was convicted under Section 302/34 of the IPC and sentenced to rigorous imprisonment for life and fine of Rs. 1,00,000/. He was also convicted for committing offence under Section 201 of the IPC and sentenced for rigorous imprisonment for three years and fine of Rs. 10,000/- only. Substantive sentence of rigorous imprisonment was directed to run concurrently.
One Shambhu Dharkar, a village Chowkidar of Azam Nagar, Kushimar village under the police station and district Araria received an information on December 23, 2016 at about 08:30 AM that dead body of one unknown person was kept on the southern side of village Diwari Fatak Bridge in a bamboo groove of one Vishundev Yadav. In order to work out the said information, the chowkidar went to the said spot. He found that police party also reached the spot. He found one unknown dead body with blackish ligature mark around the neck and bleeding from the left ear. Seeing the dead body, the chowkidar approximately ascertained his age around 35 years. He was wearing a black jacket, pink colored Shirt, a blue colored warm vest, red colored T-shirt, white colored vest and blue colored jeans full pant. There was a black thread on his neck with a locket inscribed thereon 786 and 92. He also found a blank cartridge of 315 bore in one of his pocket. Local people assembled there. Nobody could identify him. It seemed to the Chowkidar that the deceased was murdered at some other place and his dead body was tied with a Simul tree by a rope. A belt was tied around his neck.
One Ashok Kumar Singh, Sub-inspector of police recorded the statement of the said Shambhu Dharkar and treated the same as FIR. On the basis of the said statement, duly signed by Shambhu Dharkar, the SHO of Araria police station registered FIR dated December 23, 2016 under Section 302/301 IPC against unknown miscreants and entrusted Sub-Inspector King Kundan to investigate into the case. The I.O., on completion of the investigation, submitted a charge-sheet against the appellant under Sections 302/34, 201/34, and 120(B) of the IPC against Vijay Kumar Yadav. After filing of the charge-sheet, the case was committed to the Court of Sessions. The Principal Sessions Judge transferred the case record to the Court of 3rd Additional Sessions Judge, Araria for trial and disposal. The trial judge framed charge against the appellant under Section 302/34 and 201/34 as well as 120 (B) of the IPC on 13 June 2017. As the appellant pleaded not guilty, trial of the case commenced. In order to bring home the charge against the accused/appellant, prosecution examined as many as 8 witnesses. None of the witnesses could identify the accused. They also did not know how the deceased was murdered. The identity of the deceased was first ascertained on December 24, 2016 when a photograph of the deceased was published by the investigating authority in Urdu Daily. Seeing the photograph, PW-8 Md. Inteqab Alam identified the photograph of the deceased as his brother'S. In his affidavit, he stated that his brother Niyaz Ahmed was missing since December 22, 2016. After he saw the photograph in Urdu Daily on December 24, 2016, he identified the deceased to be his brother Niyaz Ahmed and went to P.S. Araria. From the P.S., he came to know that the dead body was kept in the post-mortem room. He went there and identified the dead body as of his brother's. Thereafter, he filed an application and received the dead body of his brother.
The appellant was made an accused in Araria P.S. Case of 2016 by the I.O. on the basis of the evidence which he collected during the investigation of the case.
Notably, Section 25 of the Indian Evidence Act states that no confession made to a police officer shall be proved against a person accused of any offence. It is a rule of thumb that a confession made to a police officer, of whatever rank and at whatever time, is inadmissible in evidence under the purview of Section 25. Section 26 of the Indian Evidence Act states: "No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved against such person."
The confession is required to be recorded by a Magistrate. In the instant appeal the confession of an accused while in custody can only be recorded by a Magistrate in terms of Section 26 of the Indian Evidence Act read with Section 164 of the CrPC. Any statement recorded by an I.O. during investigation of the case of any witness or an accused is a statement under Section 161 of the CrPC and Section 162(1) clearly states that no statement made by any person to a police officer in the course of an investigation under Chapter XII of the CrPC shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, except to contradict such witness in the manner provided under Section 145 of the Indian Evidence Act. Therefore, the evidence of the appellant admitting the guilt before the I.O. is not admissible in evidence and the said document could not be marked as exhibit by the trial court. The trial court committed illegality in relying on such statement allegedly made by the appellant.
Section 27 of the Evidence Act is an exception to the general rule contained in Sections 25 and 26 of the Act. Section 27 of the said Act states that when any fact is deposed to as discovered in consequence of information received from an accused of any offence while he is in custody, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. In other words, the language of Section 27 of the Evidence Act indicates that when any fact is deposed to as discovered in consequence of information received from a person who is in the custody of the police in connection with an offence, it must relate distinctly to the facts so discovered. The phrase 'facts thereby discovered is preceded with words "that so much of such information, whether it amounts to confession or not as relates distinctly". The word 'distinctly' as used in Section 27 of the Evidence Act is made to exclude certain language and to limit and confine the information which may be proved within definite limits and not necessarily to include everything which may relate to that information. The word “distinctly” indicates directly, indubitably, strictly and unmistakably, apparently, used in Section 27 to limit and define the scope of probable information. Therefore, only that much information as is clearly connected with the fact discovered can be treated as relevant under the phrase 'facts discovered'.
Justice Chaudhary observed: "28. In the instant case, the trial court in violation of Section 25 and Section 26 wrongly brought entire statement of the accused in evidence marking the same as Exhibit-9. 29. Had it been the fact that the accused made such a statement before the I.O. while he was in custody, so much of such information as relates distinctly to the fact thereby discovered, i.e., the discovery of the black purse, ATM card, bill of Maa Lakhi Jewelers, and original receipt generated from the ATM machine, etc., would have been admissible in evidence. It is needless to say that the discovery of a fact must be distinctly connected with the statement of the accused; when the discovery of a fact is distinctly connected in consequence of information, that part of the statement made by the accused is admissible under Section 27 of the Evidence Act." He relied on the decision of the Supreme Court in Govind vs. State of Haryana, reported 2025 SCC OnLine SC 2456
He added: "There is no evidence as to whether the appellant accompanied the police party and the independent witness during discovery of ATM Card of the deceased and other materials. The witnesses to whom prosecution claimed to be the seizure witnesses did not support the prosecution case. From their evidence, it is clear that they were not present at the time of seizure of ATM Card of the deceased and other materials. They put their signature on the seizure list at Maranga P.S. on being instructed by a police officer. Therefore, seizure of the materials was also not proved. 30. Last but not the least, Call Details Report, CAIF, receipt generated from ATM Swipe Machine are electronic records which could have been proved only under Section 65 (B) of the Evidence Act."
The verdict by High Court's Division Bench of Justices Chaudhuri, and Dr. Anshuman has rectified the glaring blunder committed by previous orders of the High Court.
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