LexKAPIL DEO SINHA versus KIRANDEO PRASAD & ANR.
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[2008] 14 S.C.R. 723 * KAPIL DEO SINHA A II. KIRANDEO PRASAD & ANR. (Criminal Appeal No. 1112 of 2003) OCTOBER 17, '2008 B [DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM -1 SHARMA, JJ.] Penal Code, 1860: s.302 - Conviction under, by trial Court - Acquittal by High Court - Correctness of'"'."' On facts, c held: Not correct - Non-examination of investigating officer and doctor without any explanation weakened the prosecu- tion case - Witness stated that the accused was not present when the alleged incident took place -:: High Court rightly or- dered acquittal. D Prosecution case was that in the evening of _,,... 25.3.1978, when informant was sitting in the Dalan with y PW-5, PW-7 and the deceased, the accused party came there and started attacking them with their respective weapons. This resulted in death of the deceased and in- E juries to others. Six accused persons faced trial. Sessions Court directed acquittal of five of accused persons, while holding respondent no.1 guilty of offence under s.302 IPC. High Court found that seven witnesses were examined to further the prosecution case. PW 1 the son of the de- F ~ ceased stated that they were singing Holi songs and that due to darkness they could not know as to who was the assailant. PWs 5, 6 and 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 G found this to be improbable because death of the de- "_/") ceased by the attacks took place in the evening. It was of the view that non-examination of the Investigating Officer and the Doctor without any explanation being offered by 723 H ~ 724 SUPREME COURT REPORTS [2008] 14 S.C.R. A the prosecution and the unreliability· of the evidence of \ -.,..... I PWs 5, 6 and 7 was sufficient to discard the prosecution version. Accordingly High Court ordered acquittal. Hence the instant appeal. B- Dismissing the appeal, the Court HELD : 1. The Investigating Officer and the Doctor were not examined. No reason was indicated as to why + they were not examined. The evidence of PW 1 assumed significance. He clearly .stated that the accused respon- c dent No. 1 was not present when the alleged incident took place. Further as rightly noted by the High Court, PWs. 5, 6 and 7 stated that because of the sad demise of deceased they were not celebrating Holi and were not singing Holi songs since morning. Prosecution version itself was that the attacks took place in the evening and, therefore, the D family members could not have anticipated that in the evening there would be an attack and loss of life and they would not celebrate Holi. [Para 4] [727-D-F] >...-y CRIMINALAPPELLATE JURISDICTION: Criminal Appeal E No. 1112 of 2003 From the Judgment and Order dated 26.6.2002 of the High Court of Judicature at Patna in Crl. Appeal No. 416of1987 Shweta Garg, Rakesh Garg and Khwairakpam Nobin Singh for the Appellant. F Amit Sharma, Suchit Mohanty, Anupam Lal Das and 8.8. y Singh for the Respondents. The Judgment of the Court was delivered by " G -DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to . the judgment of a Division Bench of the Patna High Court di- recting acquittal of the respondent No.1 (hereinafter 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 H holding the respondent No.1 guilty of offence punishable under ~ KAPIL DEO SINHA v. KIRANDEO PRASAD 725 &ANR. ~· Section 302 of the Indian Penal Code, 1860 (in short the 'IPC'). A 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 8 Kapildeo Singh (PW 6) alongwith his uncle Sukhu Mahton (here- ~ inafter 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 respon- dent no.1 Kirandeo Prasad with gun, the accused Akhilesh c Prasad with Sa if 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 whic
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