Kapil Deo Sinha Vs.
Kirandeo Prasad & ANR.  INSC 1762 (17 October 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1112 OF 2003 Kapil
Deo Sinha ....... Appellant Versus Kirandeo Prasad & Anr. .......
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a Division Bench of the Patna High Court
directing acquittal of the respondent No.1 (hereinafter 1 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
case in a nutshell is as follows:
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
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
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 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 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
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.
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.
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 6 to direct the acquittal. We
find no infirmity in the conclusions arrived at by the High court to warrant
is accordingly dismissed.
(Dr. ARIJIT PASAYAT)
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