Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2008 Supreme(SC) 1523

2008(7) Supreme 257
SUPREME COURT OF INDIA
Dr. Arijit Pasayat and Dr. Mukundakam Sharma, JJ.
Kapil Deo Sinha — Appellant
versus
Kirandeo Prasad & Anr. — Respondents
Criminal Appeal No. 1112 of 2003
Decided on : 17-10-08

Advocates appeared:
For the Appellant :Ms. Shweta Garg, Rakesh Garg and Khwairakpam Nobin Singh, Advocates.
For the Respondents:Amit Sharma, Suchit Mohanty, Anupam Lal Das and B.B. Singh, Advocate.

IMPORTANT POINT
Non examination of police officer who made investigation of the case and the doctor who conducted autopsy over the dead body of the deceased vitiates prosecution case.

Headnote:Indian Penal Code, 1860 – Section 302 – Prosecution of respondent.1 along with five other accused persons under Sections 147/148/149/302/324 of IPC and Section 27 of the Arms Act, 1927 for entering into dalan of informant armed with guns and lathis and for causing death of deceased by firing gun shot – Prosecution case that informant alongwith deceased, and two others were sitting in the Dalan on the date of incident when respondent and accused persons came there and a quarrel ensued between parties – Allegation that accused persons assaulted members of informant party with saif and lathis – Trial Judge while convicting respondent.1-acquitted rest of five accused persons of charges framed against them – Appeal – High Court set aside conviction of respondent1 holding that non-examination of Investigating Officer and Doctor without any explanation being offered by prosecution and unreliability of the evidence of PWs 5, 6 & 7 was sufficient to discard prosecution version – Appeal – Instantly neither the I.O. nor the Doctor had been examined – No reason had been indicated as to why they were not Examined – Added to that, evidence of PW 1 was held to be of significance as he clearly stated that accused respondent 1 was not there when alleged incident took place – As rightly noted by High Court, PWs. 5, 6 & 7 stated that because of sad demise of deceased they were not celebrating Holi and were not singing Holi songs from the morning – Prosecution version itself was that 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 had not been taken note of by High Court to direct the acquittal – No infirmity found in the conclusions arrived at by High court to warrant interference – Appeal dismissed. (Paras 4 and 5)
       Facts of the Case :
        1. Respondent.1 was prosecuted herein in the instant case along with five other accused persons for entering into dalan of informant armed with guns and lathis and for causing death of deceased by firing gun shot. Prosecution case that informant alongwith deceased, and two others were sitting in the Dalan on the date of incident when respondent and accused persons came there and a quarrel ensued between parties. Allegation that accused persons assaulted members of informant party with saif and lathis. Trial Judge while convicting respondent.1-acquitted rest of five accused persons of charges framed against them. On Appeal, High Court however set aside conviction of respondent1.
        2. Present appeal has been filed against said order of High Court.
       Findings of the Court :
        Instantly neither the I.O. nor the Doctor had been examined. No reason had been indicated as to why they were not Examined. Added to that, evidence of PW 1 was held to be of significance as he clearly stated that accused respondent 1 was not there when alleged incident took place. As rightly noted by High Court, PWs. 5, 6 & 7 stated that because of sad demise of deceased they were not celebrating Holi and were not singing Holi songs from the morning. Prosecution version itself was that 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 had not been taken note of by High Court to direct the acquittal. No infirmity was found in the conclusions arrived at by High court to warrant interference.
       Result : Appeal dismissed.

JUDGMENT

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 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 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 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

Click Here to Read the rest of this document

2008 Supreme(SC) 1523

2008(7) Supreme 257SUPREME COURT OF INDIADr. Arijit Pasayat and Dr. Mukundakam Sharma, JJ.Kapil Deo Sinha — AppellantversusKirandeo Prasad & Anr. — RespondentsCriminal Appeal No. 1112 of 2003Decided on : 17-10-08

IMPORTANT POINT Non examination of police officer who made investigation of the case and the doctor who conducted autopsy over the dead body of the deceased vitiates prosecution case.

2008(7) Supreme 257
SUPREME COURT OF INDIA
Dr. Arijit Pasayat and Dr. Mukundakam Sharma, JJ.
Kapil Deo Sinha — Appellant
versus
Kirandeo Prasad & Anr. — Respondents
Criminal Appeal No. 1112 of 2003
Decided on : 17-10-08

IMPORTANT POINT
Non examination of police officer who made investigation of the case and the doctor who conducted autopsy over the dead body of the deceased vitiates prosecution case.