REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1112 OF 2003

Kapil Deo Sinha ……. Appellant

Versus

Kirandeo Prasad & Anr.          ……. Respondents

J U D G M E N T

Dr. ARIJIT PASAYAT, J.  

1. Challenge in this appeal is to the judgment of a Division Bench of the

Patna  High  Court  directing  acquittal  of  the  respondent  No.1  (hereinafter

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referred to as the ‘accused’).  Appellant was the informant in the case.  Six

accused persons faced trial and learned Sessions Judge, Nalanda, directed

acquittal of five of the accused persons, while holding the respondent No.1

guilty of offence punishable under Section 302 of the Indian Penal Code,

1860 (in short the ‘IPC’).  He was sentenced to imprisonment for life.  In

appeal, High Court set aside the conviction.

2. Prosecution case in a nutshell is as follows:  

In the evening of 25.3.1978 at about 6 P.M. the informant Kapildeo

Singh (PW 6) alongwith his uncle Sukhu Mahton (hereinafter referred to as

the ‘deceased’),  Somar Mahton (PW 5) and father  Ramji  Prasad (PW 7)

were sitting in the Dalan and were talking about  the rent  matter.   In the

mean  time  the  respondent  no.1  Kirandeo  Prasad  with  gun,  the  accused

Akhilesh  Prasad  with  Saif  and rest  four  accused persons  namely, Nandu

Prasad, Mathura Prasad, Bhagwat Prasad and Umesh Prasad with lathi came

there and started exchanging hot words with Sukhu Mahton. On protest the

respondent  no.1-Kirandeo  Prasad  fired  from  his  gun  at  Sukhu  Mahton

which  hit  in  the  right  side  of  his  chest  and  he  fell  down.  The  accused

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Akhilesh  Prasad  assaulted  Sukhu  Mahton  with  Saif  on  his  head.  The

accused Bhagwat Prasad assaulted the informant, Kapildeo Sinha (PW 6)

with Saif on his head and Umesh Prasad with lathi on his right hand. The

accused Mathura Prasad also assaulted the informant on his right shoulder

and the accused Akhilesh Prasad assaulted his uncle Somar Mahton from

the lathi  portion  of  the  Saif  which  caused injury on  his  both  hands.  On

hearing  their  cries  the  co-villagers  including  Rajendra  Mahton  (PW  2)

arrived  there  and  he  was  also  assaulted  by  the  co-accused,  Nandu.  The

injured Sukhu Mahton died of fire arm injury at the spot.

The motive behind the occurrence has been alleged to be the non-

participation  of  the  prosecution  party  at  the  dinner  organised  by  the

respondent-Kirandeo Prasad on the occasion of Satya Narain Puja,  10/12

days prior to the occurrence and the respondent had threatened him with

dire consequences.

The deceased Sukhu Mahton was taken to Islampur Police Station

under Nalanda at Biharsharif District. The informant, Kapildeo Sinha (PW

6) put law in motion and on the basis of his statement a formal F.I.R. was

drawn up by the police and the case under Sections 147/148/149/302/324

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IPC and Section 27 of the Arms Act, 1927 (in short  the ‘Arms Act) was

instituted against the respondent no.1 and five other accused persons.   The

Investigating  Officer  switched  over  to  investigation  and  ultimately

chargesheeted all the six accused persons for trial and they were tried by the

learned Sessions Judge, Nalanda at Biharshariff.

At trial  the  prosecution examined seven witnesses  and the defence

examined none.

The accused persons  pleaded their  innocence and false  implication

out of enmity.

On consideration of the prosecution evidence and other materials on

record,  the  trial  Judge  convicted  and  sentenced  the  respondent  no.1-

Kirandeo Prasad as indicated above.  However, he acquitted the rest of the

five accused persons of the charges framed against them.  Hence appeal was

filed by Kirandeo Prasad.

Before the High Court the respondent No.1 pointed out that the police

officer who made investigation of the case was not examined in the trial

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court causing serious prejudice to him.  The doctor who conducted autopsy

over the dead body of the deceased was also not examined.   

The High Court found that seven witnesses were examined to further

the prosecution version.   Although PW 1 was the son of the deceased, PW

2 was the injured witness, PW 6 the present appellant was the informant,

PWs.  5,  6  &7 i.e.  Somar  Mahton,  Kapildeo  Sinha  and  Ramji  Prasad  @

Rama respectively were stated to be  eye witnesses to the occurrence.  PW 1

the son of the deceased stated that they were singing Holi songs.  PW 1 also

stated that due to darkness they could not know as to who was the assailant.

PWs 5, 6 & 7 stated contrary to what PW 1 had stated and stated that they

were not participating in Holi because of the death of the deceased.  The

High Court found this to be improbable because death of the deceased by

the attacks took place in the evening.  The High Court was of the view that

non-examination of the Investigating Officer (in short  the ‘I.O.’) and the

Doctor without any explanation being offered by the prosecution and the

aforesaid unreliability  of the evidence of PWs 5, 6 & 7 was sufficient to

discard the prosecution version.   

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The informant-appellant submitted that merely because the I.O. and

the Doctor had not been examined, that cannot be a ground to discard the

prosecution version.  Further the Holi celebration by singing of songs was

continuing  since  morning  till  late  night,  therefore,  there  was  nothing

unreliable in the evidence of PWs 5, 6 & 7.

3. Learned counsel for the accused-respondent supported the judgment

of the High Court.

4. In the instant case it  is noticed that neither the I.O. nor the Doctor

have been examined.  No reason has been indicated as to why they were not

examined.  Added to that, the evidence of PW 1 assumes significance.  He

has clearly stated that the accused respondent No. 1 was not there when the

alleged incident  took place.   Further as rightly noted by the High Court,

PWs. 5, 6 & 7 stated that because of the sad demise of deceased they were

not  celebrating Holi  and were not  singing Holi  songs  from the morning.

Prosecution version itself is that the attacks took place in the evening and,

therefore, the family member could not have anticipated that in the evening

there  will  be  an  attack  and  loss  of  life  and  therefore  they  would  not

celebrate Holi. These factors have not been taken note of by the High Court

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to direct the acquittal.  We find no infirmity in the conclusions arrived at by

the High court to warrant interference.

5. Appeal is accordingly dismissed.

      .................................. .......J.

     (Dr. ARIJIT PASAYAT)

     .…………........................J.     (Dr. MUKUNDAKAM SHARMA)

New Delhi; October 17, 2008

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