Holding

The conviction under Section 302 IPC was unsustainable due to the non‑examination of crucial prosecution witnesses and unreliable testimony, and the appeal was dismissed.

Summary

The incident occurred on 25 March 1978 when six accused, including Kirandeo Prasad, attacked a group in a dalan, resulting in the death of Sukhu Mahton. The trial court convicted Kirandeo Prasad under Section 302 IPC and sentenced him to life imprisonment, acquitting the other five accused. On appeal, the Patna High Court set aside the conviction, noting that the investigating officer and the autopsy doctor were not examined and that key witnesses either claimed the accused was absent or gave inconsistent statements about a Holi celebration. The Supreme Court examined whether the non‑examination of the investigating officer and doctor, without any explanation, warranted overturning the conviction and found no infirmity in the High Court’s reasoning. Consequently, the Supreme Court dismissed the appeal, upholding the acquittal of Kirandeo Prasad.

Issues considered

Whether the failure to examine the investigating officer and the autopsy doctor, without any justification, invalidates the prosecution's case.
Whether the testimony of witnesses, particularly the claim that the accused was not present, is reliable enough to sustain a conviction under Section 302 IPC.

Legislation cited

Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 302, s. 324

Subjects

murderconvictionacquittalinvestigating officerautopsy doctorwitness reliabilitycriminal procedureIPC Section 302appellate review

Judgment

[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.
Dismissing the appeal, the Court
B-
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-
dent No. 1 was not present when the alleged incident took
c 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
No. 1112 of 2003
E
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.
Singh for the Respondents.
y
The Judgment of the Court was delivered by "

-DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to
G . 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 which hit in the right side of
D
his chest and he fell down. The accused Akhilesh Prasad as-
saulted Sukhu Mahton with Saif on his head. The accused
~
y 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 E
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. F
~·
The motive behind the occurrence has been alleged to be
the nonparticipation 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
G
the respondent had threatened him with dire consequences.
\

~- The deceased Sukhu Mahton was taken to lslampur Po-
lice 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.l.R. was drawn up by the police and the H
726 SUPREME COURT REPORTS [2008) 14 S.C.R.

A case under Sections 147/148/149/302/324 IPC and Section ~
I
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 ulti-
mately chargesheeted all the six accused persons for trial and
B they were tried by the learned Sessions Judge, Nalanda at
Biharshariff.
At trial the prosecution examined seven witnesses and the
defence examined none.
+
c ·The accused persons pleaded their innocence ~nd 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. How-
D ever, he acquitted the rest of the five accused persons of the
charges framed against them. Hence appeal was filed by
Kirandeo Prasad. "-..
y
Before· the High Court the respondent No.1 pointed out
that the police officer who made investigation of the case was
E 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 exam-
F ined 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 respec-
tively were stated to be eye witnesses to the occurrence. PW 1
the son of the deceased stated that they were singing Holi songs.
G
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
H
KAPIL DEO SINHA v. KIRANDEO PRASAD 727
& ANR. [

--.... the attacks took place in the evening. The High Court was of the A
view that non-examination of the Investigating Officer (in short
the '1.0.') 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 ver-
sion. B
The informant-appellant submitted that merely because the
-i 1.0. and the Doctor had not been examined, that cannot be a
ground to discard the prosecution version. Further the Holi eel-
'"". ebration by singing of songs was continuing since morning till
late night, therefore, there was nothing unreliable in the evidence c
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 1.0. nor D
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
3ccused respondent No. 1 was not there when the alleged inci-
dent took place. Further as rightly noted by the High Court, PWs. E
5, 6 & 7 stated that because of the sad demise of deceased
• they were not celebrating Holi an_d were not singing Holi songs
from the morning. Prosecution version itself is that the attacks
took place in the evening and, therefore, the family members
could not have anticipated that in the evening there will be an F
attack and loss of life and therefore they would not celebrate
~ Holi. The$e factors have not been taken note of by the High
Court to direct the acquittal. We find no infirmity in the conclu-
sions arrived at by the High court to warrant ir.terference.
5. Appeal is accordingly dismissed. G

~ _..'T-;. D.G. Appeal dismissed.
I